A Warrant Requirement Resurgence? the Fourth Amendment in the Roberts Court

By Priester, Benjamin J. | St. John's Law Review, Spring 2019 | Go to article overview

A Warrant Requirement Resurgence? the Fourth Amendment in the Roberts Court


Priester, Benjamin J., St. John's Law Review


introduction

Over many years, the United States Supreme Court has developed an extensive body of precedent interpreting and enforcing the provisions of the Fourth Amendment to the United States Constitution, which prohibits unreasonable searches and seizures by law enforcement agents conducting criminal investigations. Commonly called the "warrant requirement," one key component of this case law operates to deem some police investigatory techniques to be unconstitutional unless they are conducted pursuant to a search warrant issued in advance by a judge. The terms of the doctrine and its exceptions also authorize other investigatory actions as constitutionally permissible without a search warrant. The doctrinal framework created by the warrant requirement serves as a core foundational principle of the Court's constitutional criminal procedure for police investigations.

The conventional wisdom about the warrant requirement suggests that over the last half-century, the Court has moved from rigorously interpreting and enforcing the doctrine to reducing its importance and recognizing more exceptions for permissible warrantless searches. While this perspective has some descriptive accuracy in the aggregate, the past decade of the Roberts Court has produced a series of Fourth Amendment decisions, ranging across a variety of subsidiary doctrinal areas, where the warrant requirement has made a comeback-cases in which a criminal defendant has prevailed because the police lacked a search warrant when acquiring crucial evidence during the investigation. A common thread among these decisions is the Roberts Court's confrontation of the Fourth Amendment implications of electronic surveillance, internet connectivity, data analytics, and other rapidly advancing technologies in the digital age. This resurgence of the warrant requirement cannot be readily dismissed as happenstance or coincidence, and consequently its development and its future ramifications are worthy of careful consideration.

A.Doctrinal Foundations

For many years, the warrant requirement has been the subject of considerable commentary and analysis, both in the opinions of the Court and among scholars.1 Reviewing the basic premises of the doctrine is helpful in establishing the framework for assessing the Court's recent cases.

Ratified in 1791, the Fourth Amendment accomplished two important objectives in repudiating certain practices by the Crown's agents which, along with many others, had helped to provoke the American Revolution.2 First, it prohibited "unreasonable" searches and seizures, ensuring a significant degree of protection for the security of individuals and their property against government intrusion.3 Second, it abolished the general warrants and writs of assistance despised by the Founders, instead restricting the issuance of warrants to those supported by an evidentiary basis in probable cause and circumscribed by particularity in location, target, and subject matter.4 The relationship between these two clauses of the Fourth Amendment serves as a core underlying issue in debates over the Court's warrant requirement doctrine.5

The warrant requirement became prominent during the 1960s and 1970s, when the Court's decisions rapidly expanded the doctrinal scope of constitutional criminal procedure.6 In numerous opinions, the Court has stated the requirement in these terms: a warrantless search is presumptively unreasonable in violation of the Fourth Amendment.7 Although the Court in the same period recognized a variety of situations in which that presumption could be overcome-such as the presence of exigent circumstances, the discovery of evidence of a crime in plain view, or a temporary "stop and frisk" detention short of custodial arrest8-this doctrinal formulation established an important procedural distinction for litigating motions to suppress evidence. When the police discover evidence pursuant to a search warrant, the burden is on the defendant to prove that the warrant was constitutionally defective in its issuance or that the police impermissibly exceeded the scope of search authorization contained in an otherwise duly issued warrant. …

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