by Thomas N. McInnis. New York: Lexington Books, 2009. 334pp. Cloth $80.00. ISBN: 9780739129760.
Reviewed by Raymond G. Kessler, Department of Criminal Justice, Sul Ross State University. Email: rkessler [at] sulross.edu.
Many observers of the Fourth Amendment suspect that its protections have declined since the Warren Court days. Thomas McInnis’ book confirms that observation. Each chapter, except the first, starts with an illustrative case and ends with an “Illustrative Case Reprise.” With these sections, the author attempts to provide greater insight into some of the main points of the chapter. Some readers may find this feature helpful. Others may find it less so. All chapters except the first and last have helpful “Conclusion” sections.
Chapter 1 is a Prologue. As suggested by the title, the goal of the author is to trace the evolution of the Fourth Amendment in Supreme Court caselaw through 2007. McInnis contends that the Court has struggled, and continues to struggle, to provide consistency and predictability in its Fourth Amendment decisions.
The second chapter provides a short review of the historical background of the adoption of the Fourth Amendment, and the Supreme Court’s early treatment of the Amendment. The law developed slowly, and by the end of the nineteenth century, the Court heard only five Fourth Amendment cases. In its decisions in the early 1900s the Court began developing what McInnis terms the “traditional model.” According to this model, the Fourth Amendment dictates a strong preference for warrants. The two clauses of the Amendment are linked and warrantless searches are unreasonable unless they fall within a few well-delineated “reasonable” exceptions. At first, other than consent, these exceptions required arrest or search probable cause and some exigent circumstance. In chapters 3 through 7, all the landmark cases and important doctrinal changes are discussed.
One of the most interesting parts of the book involves the Warren Court and how, in spite of its liberal reputation, it laid the doctrinal groundwork that later Courts used to cut back on the traditional model and an expansive view of the Fourth Amendment. Although the Warren Court greatly expanded Fourth Amendment rights, it created some precedents that would later be used to limit those rights. CAMARA v. MUNICIPAL COURT (1967) and SEE v. CITY OF SEATTLE (1967) did not involve searches for evidence of crime - only building and other city code inspections. Those decisions, however, allowed warrants to be issued without probable cause or individualized suspicion, and ignored the particularity requirement. A rationale that approved searches under a highly flexible and subjective reasonableness approach became established. Reasonableness was tested by balancing the degree of intrusion on rights against the government interest. The traditional approach of a strong preference for [*838] ordinary search warrants, with limited categorical exceptions with probable cause and/or exigent circumstances, was ignored.
Even more problematic was the Court’s decision in TERRY v. OHIO (1968). Again, the Court used the balancing approach and, for the first time, allowed warrantless searches and seizures without consent in ordinary criminal cases on less than probable cause to search or arrest. Prior to this time, exceptions to the warrant requirement required consent, arrest or search probable cause and/or exigent circumstances. Probable cause was no longer a central feature of exceptions to the warrant requirement. Only Justice Douglas dissented.
McInnis defends these three decisions by arguing that they were motivated by the Court’s desire to ensure that the government practices involved were covered and limited by the Fourth Amendment. Of course, the Court could also do this by striking down the government action in all three cases. By validating stop and frisk and in failing to put strict limits on the reasonableness approach, the Warren Court set the stage for later conservative Courts, under Chief Justices Burger, Rehnquist and Roberts, to limit the protections of the Fourth Amendment.
The reasonableness approach spawned an even more toothless test termed “special needs.” Under this approach, the Court, for the first time allowed a search of an individual’s home without a warrant, consent or exigent circumstances. The special needs of a probation system allowed search of a probationer’s home on a reasonable basis for the search (GRIFFIN v. WISCONSIN, 1987). However, later, (e.g., FERGUSON v. CHARLESTON, 2001) the Court seems to have put some teeth in its special needs doctrine.
According to McInnis, the traditional approach with its emphasis on warrants, limited exceptions to the warrant requirement, and probable cause has now largely been reduced to empty rhetoric. It has been replaced by a reasonableness approach that is so flexible and fluid that it has become a “slippery slope rather than bedrock” (157). The preference for warrants is now cant which has been replaced by a reasonableness approach that opens the door for a multitude of searches and seizures without warrants, probable cause or even individualized suspicion.
McInnis notes that in addition to expanding the reasonableness approach at the expense of the traditional preference for warrants, post-Warren Courts have used a number of doctrinal techniques to curtail Fourth Amendment protection. The doctrine of standing has been limited to restrict defendant’s ability to invoke the Fourth Amendment The definitions of a “search” and “reasonable” and/or “legitimate” expectation of privacy have been limited. Bright-line rules that benefit law enforcement have been drawn up to replace case-by-case analysis. New exceptions to the exclusionary rule and the general preference for warrants have been created. Existing exceptions have been expanded. The exclusionary rule is now viewed as a judicially created remedy, the only purpose of which is to deter police misconduct. Judicial integrity has been long forgotten. Further, the rule will be applied only [*839] when the deterrent effect outweighs the “costs to society.”
Another interesting point is how many of the decisions and doctrines used to erode the traditional model came from liberal Justices. In addition to the Warren Court cases discussed above, Justice Blackmun, not often accused of being a conservative Justice, laid the groundwork for the special needs test in his concurrence in New Jersey v. TLO (1985). Not even the current Court’s most liberal Justices (Stevens, Breyer and Ginsburg) seem to be ardent protectors of the Fourth Amendment. McInnis notes that in the six Roberts Court decisions he analyzed, the Court was unanimous in the five supporting the government position.
McInnis also notes that the Court is caught in a vicious circle. Over many years, various “Courts have also recognized that often the inability to follow the law was due to the complexities of law the Court has developed, not the government’s desire to flagrantly violate the law” (290). To compensate for this, the Court has created more exceptions to the exclusionary rule and doctrines to justify government action when the mistakes could be deemed understandable.
The final chapter discusses the future of the Fourth Amendment. In a telling quote, McInnis notes one the great controversies of law and politics in this country. He writes: “Individuals may disagree with the positions of the post-Warren Courts that we have more to fear from criminals [and terrorists] than an overbearing government, but that is the conclusion they reached” (290).
As in other areas of the law, a badly divided Court has failed to provide consistent theory and results. Stare decisis and consistency seems to be of little importance to either liberals or conservatives. Another example, released after publication of the book, is ARIZONA v. GANT (2009). Ad hoc and subjective decision-making can be expected to continue. Anti-terrorism efforts, including the USA Patriot Act, and technological advancements, including new surveillance tools, will create new challenges to Fourth Amendment values. The Roberts Court can be expected to continue the reasonableness approach and give preference to security and order concerns.
Further, McInnis notes criticism of the traditional model and support for reasonableness approaches, but does not spend enough time on these issue. Justice Scalia (concurring in CALIFORNIA v. ACEVEDO, 1991) and others, (e.g., Amar 1994) argue that the Framers did not intend to create a preference for warrants. McInnis does not give enough time to the argument that the purpose of the warrants clause is only to prevent the issuance of general warrants--a British practice hated by the colonists. Warrants insulated British officials from liability, and the Framers wanted to make sure that general warrants would not provide such immunity in the future. Further, it can be argued that unlike the current rudderless reasonableness approach, a principled reasonableness approach that seriously respects Fourth Amendment values is closer to the real purpose of the “unreasonable searches” clause. [*840]
This is a very valuable work for students of the Fourth Amendment. It is well-documented, has an Index, Table of Cases, and an extensive Bibliography. McInnis’ work is relatively easy reading and covers the landmark cases in a concise but clear manner.
Amar, A.R. 1994. “Fourth Amendment First Principles.” HARVARD LAW REVIEW 107: 757-819.
ARIZONA v. GANT, 556 U.S. ___, 129 S.Ct. 1710 (2009).
CAMARA v. MUNICIPAL COURT, 387 U.S. 523 (1967).
CALIFORNIA v. ACEVEDO,500 U.S. 565 (1991).
FERGUSON v. CHARLESTON,. 532 U.S. 67 (2001).
GRIFFIN v. WISCONSIN, 483 U.S. 868 (1987).
NEW JERSEY v. T.L.O., 469 U.S. 325 (1985).
SEE v. CITY OF SEATTLE, 387 U.S. 541 (1967).
TERRY v. OHIO, 392 U.S. 1 (1968).
© Copyright 2009 by the author, Raymond G. Kessler.