On Seizures and Searches
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Authors
Rotenberg, Daniel L.
Issue Date
1995
Volume
28
Issue
Type
Journal Article
Language
Keywords
Alternative Title
Abstract
INTRODUCTION|This essay offers a modest proposal that modifies several police and court search and seizure procedures. The proposal has five main points. First, a police probable cause search without a warrant should not be found as constitutionally reasonable if a probable cause seizure is a feasible alternative. In short, seizure should precede search. Second, when a seizure has occurred, any subsequent search should be pursuant to a judicial warrant. For the warrant system to have significance, it must be upgraded so that real judicial scrutiny is applied to any police request to search. Third, the Fourth Amendment right of privacy should be revitalized. Fourth, the exclusionary rule should be viewed as a remedy for a violation of a constitutional right not as a deterrent for police excesses. Fifth, police searches based on "incident to arrest," "frisk of a vehicle," "inventory," and "administrative authority" should be narrowed in scope. The reasons for this suggested revision are the following obvious ones: it enhances personal privacy, protecting individuals from unsupervised, intrusive governmental searches, and it simplifies police decision-making while at the same time protecting the public from crime by preserving the police's power to act in exigent situations...
Description
Citation
28 Creighton L. Rev. 323 (1994-1995)
Publisher
Creighton University School of Law