The Fourth Amendment: Internal Revenue Code or a Body of Principles?

71 Pages Posted: 29 Aug 2006  

Stephen A. Saltzburg

George Washington University School of Law

Abstract

The Supreme Court has made the body of Fourth Amendment law too complicated, inconsistent, and confusing. Prior to Mapp v. Ohio, in 1961, the Court focused its attention on federal law enforcement and devoted less of its docket to criminal procedure cases. After Mapp, the Court was called upon to review state cases and forced to deal with the myriad of state law enforcement issues that inevitably arise. Since Mapp, the Court has made the meaning of the relatively few words that constitute the Fourth Amendment extremely complicated, so that the total body of Fourth Amendment law has begun to take on the shape of an Internal Revenue Code (a hodgepodge of rules enacted by ever-shifting coalitions of decision makers) rather than a body of coherent principles (of the type often associated with judicial decisions and reasoning).

This article offers examples of the unsatisfactory present state of the law, suggests alternatives to the Court's holdings, seeks to demonstrate why principled rules provide clearer guidance to law enforcement and citizens than arbitrary bright line rules, and explains how principled rules can enable law enforcement to do its work effectively while being true to basic Fourth Amendment values.

After demonstrating the problems associated with the Court's arbitrary and inconsistent decisions, the article identifies some basic principles that should guide the Court. I explain the importance of determining whether law enforcement officials are engaging in consensual or nonconsensual conduct. I discuss seizures and Terry stops and offer suggestions on adopting principles that would make it easier for both law enforcement officers and citizens to know when a seizure occurs. I address a controversial suggestion for reform of Fourth Amendment law. Finally, I conclude with three straight-forward suggestions for making the law of searches clearer and more principled.

Keywords: Fourth Amendment, Mapp, criminal procedure, law enforcement, arrest, stop, search, seizure

JEL Classification: K14, K41, K42

Suggested Citation

Saltzburg, Stephen A., The Fourth Amendment: Internal Revenue Code or a Body of Principles?. George Washington Law Review, Vol. 74, 2006; GWU Law School Public Law Research Paper No. 218; GWU Legal Studies Research Paper No. 218. Available at SSRN: https://ssrn.com/abstract=926992

Stephen A. Saltzburg (Contact Author)

George Washington University School of Law ( email )

2000 H Street, N.W.
Washington, DC 20052
United States
202-994-7089 (Phone)

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