301. Justifying Searches on the Basis of Equality of Treatment
- Author
-
Robert L. Misner
- Subjects
Siege ,Supreme Court Decisions ,Sobriety ,restrict ,Jurisprudence ,Law ,Political science ,Criminal Conduct ,Protected persons ,Supreme court - Abstract
Fourth Amendment jurisprudence is in serious disarray. In searches associated with specific criminal conduct, the per se rule of Johnson v. United StatesI has been under siege almost since its inception. In searches associated with non-specific criminal conduct airport stops,2 border searches,3 drug testing,4 and sobriety checkpoints5 the Supreme Court has been reluctant to restrict police practices.6 Yet, it has become very difficult to predict just how the dual objectives of the Fourth Amendment protection against unjustified searches and protection against arbitrary searches7 will play out in any given set of facts. There is, however, a rather surprising theme which seems to unify many of the Supreme Court decisions on the Fourth Amendment: The Supreme Court has become so concerned with the equal treatment of searched persons that the Court has often abandoned its role in providing protection for individual privacy. In many situations, the Supreme Court has become more interested in whether all searched persons are treated equally than whether the Fourth Amendment has protected persons in a substantive way. The concern for equality has allowed the Supreme Court to give great defer more...
- Published
- 1991
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