The Fourth Amendment: Original Understandings and Modern Policing

The key insight of this book is that the police are required to obey the law. Although that sounds obvious, courts have generally lost track of that requirement because they have badly misinterpreted the two constitutional provisions governing police conduct: the Fourth and Fourteenth Amendments. The Fourth Amendment forbids "unreasonable searches and seizures" and is the source of most constitutional constraints on policing. Although that provision technically applies only to the federal government, the Fourteenth Amendment, ratified in the wake of the Civil War, has been deemed to apply the Fourth Amendment to the States. This book contends that the courts’ misinterpretation of these provisions has led them to mistakenly hold federal and state law enforcement to the same constitutional standards. The Fourth Amendment was originally understood as a federalism, or “states rights,” provision which, in effect, required federal agents to adhere to state law when searching or seizing. Thus, applying the same constraint to the States is impossible. Instead, the Fourteenth Amendment was originally understood in part as requiring that state officials (1) adhere to state law, (2) not discriminate, and (3) not be granted excessive discretion by legislators. These principles – legality, nondiscrimination, and nondelegation – should guide judicial review of modern policing. Instead, constitutional constraints on policing are too strict and too forgiving at the same time. They are too strict because the courts have created a “warrant-preference rule,” that in order to limit the discretion of individual officers, searches and seizures should generally be conducted only based on warrants supported by probable cause, and any deviation from that requirement demands special justification. Instead, courts should recognize that specific legislative and administrative guidelines can often restrict the discretion of individual officers as effectively as warrants can. On the other hand, constitutional constraints on policing are too forgiving because the courts have permitted police far too much discretion in areas where warrants are impracticable, such as in making traffic stops and arrests for minor offenses, and conducting “stop and frisks,” where police officer discretion should be more tightly controlled by legislative or administrative guidelines. Likewise, when police use deadly force, they should be judged by the same standard as the rest of us: state law. This book calls for a reimagination of what modern policing could look like based on the original understandings of the Fourth and Fourteenth Amendments.

https://press.umich.edu/Books/T/The-Fourth-Amendment2