Ninety-three years ago, in response to a newspaper account, Mark Twain wrote: "The reports of my death are greatly exaggerated." While it may be premature to sound the death knell for the fourth amendment, it is no exaggeration to suggest that unless drastic action is taken to remedy the destructive erosion of the fourth amendment, it may as well be buried.
Current search and seizure doctrine is inconsistent and incoherent.' No one, including the police who are to abide by it, judges who apply it, or the people who are protected by it, has any meaningful sense of what the law is. Undaunted by the lack of coherent guidelines, the police are searching houses, greenhouses, warehouses, motor vehicles," papers, and effects, and seizing persons and things. Meanwhile, judges are required to determine the constitutionality of these searches.
Two decades of jurisprudence covering the warrant requirement and probable cause have seen a ruling majority of the United States Supreme Court either refusing to follow precedent or rewriting precedent to suit present concerns. Rather than mold a body of reliable fourth amendment law, the Supreme Court has created a makeshift solution. Instead of providing direction and guidance to lower courts, the Court has rendered amorphous case-by-case, fact-specific adjudications, whose method of reasoning often is better suited for juries in negligence actions than judges adjudicating constitutional rights. This lack of clear rules has left search and seizure law mired in confusion and contradiction.
Some scholars suggest that the fourth amendment is a diseased limb on a sick tree and that the morass of the fourth amendment is symbolic of larger problems with constitutional theory generally."' While the analogy is apt, the fourth amendment branch can be treated, pruned, and cured apart from the ailments of the rest of the constitutional tree.
Phyllis T. Bookspan,
Reworking the Warrant Requirement: Resuscitating the Fourth Amendment,
44 Vanderbilt Law Review
Available at: https://scholarship.law.vanderbilt.edu/vlr/vol44/iss3/2