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NCJ Number: 114808 Find in a Library
Title: Constructing Fourth Amendment Principles From the Government Perspective: Whose Amendment Is It, Anyway?
Journal: American Criminal Law Review  Volume:25  Issue:4  Dated:(Spring 1988)  Pages:669-742
Author(s): T Maclin
Date Published: 1988
Page Count: 74
Type: Legislation/Policy Analysis
Format: Article
Language: English
Country: United States of America
Annotation: A series of U.S. Supreme Court decisions indicate that the Court is constructing fourth amendment rights from the perspective of the Government official or police officer rather than from that of the individual who is the subject of Government intrusion.
Abstract: Three themes illustrate the Court's new approach. First, the Court moved away from the previous model (United States vs. Katz) for deciding what constitutes a reasonable expectation of privacy from a focus on an individualistic, protection-oriented approach to the use of a balancing test. This balancing formula weighed the interest of the Government in effective law enforcement against the individual's right to be free from unreasonable police intrusions. The balancing model has since been abandoned for a police perspective that fails to appreciate the implications of court rulings for persons not immediately involved in a case. Also underlying the police perspective is a narrow view of fourth amendment rights that emphasizes facilitation of Government investigations rather than broad, arbitrary, and unjustified Government invasion. In addition, the Court has established that there are no expectations of privacy in an item of contraband, a ruling that focuses exclusively on the result of a given police intrusion rather than on the context compromised by the Government's intrusive activities. Finally, under its special needs rationale, the Court has granted exceptions to probable cause and warrant requirements when circumstances beyond the normal need for law enforcement make such requirements impracticable. Decisions such as those in Griffin vs. Wisconsin, O'Connor vs. Ortega, and New York vs. Burger indicate that the court is more concerned with facilitating law enforcement than in protecting citizens from the threat of unfettered police discretion. 398 footnotes.
Main Term(s): Right of privacy
Index Term(s): Police discretion; Police legal limitations; Probable cause; Search and seizure
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