skip navigation

PUBLICATIONS

Register for Latest Research

Stay Informed
Register with NCJRS to receive NCJRS's biweekly e-newsletter JUSTINFO and additional periodic emails from NCJRS and the NCJRS federal sponsors that highlight the latest research published or sponsored by the Office of Justice Programs.

NCJRS Abstract

The document referenced below is part of the NCJRS Virtual Library collection. To conduct further searches of the collection, visit the Virtual Library. See the Obtain Documents page for direction on how to access resources online, via mail, through interlibrary loans, or in a local library.

 

NCJ Number: 51678 Find in a Library
Title: SOME OBSERVATIONS AND PROPOSALS ON THE NATURE OF THE FOURTH AMENDMENT
Journal: GEORGE WASHINGTON LAW REVIEW  Volume:46  Issue:4  Dated:(MAY 1978)  Pages:529-580
Author(s): R J BACIGAL
Corporate Author: George Washington University
National Law Ctr
United States of America
Date Published: 1978
Page Count: 52
Sponsoring Agency: George Washington University
Washington, DC 20052
Format: Article
Language: English
Country: United States of America
Annotation: REGULATION OF GOVERNMENT POWER (THE LIMITATION PERSPECTIVE) AND ASSURANCE OF THE RIGHT OF PRIVACY (THE INDIVIDUAL PERSPECTIVE) ARE EXPLORED AS ALTERNATIVE APPROACHES TO ANALYZING THE FOURTH AMENDMENT.
Abstract: THE FOURTH AMENDMENT PROTECTS PEOPLE AGAINST UNREASONABLE SEARCHES AND SEIZURES. THE FAILURE OF THE JUDICIARY TO ARTICULATE THE PRINCIPLES UNDERLYING THE FOURTH AMENDMENT HAS RESULTED IN A LACK OF CONSISTENCY AND CLARITY IN FOURTH AMENDMENT DECISIONS. ONE QUESTION THAT HAS NOT BEEN ADDRESSED IS WHETHER THE FOURTH AMENDMENT SHOULD BE VIEWED FROM AN INDIVIDUAL PERSPECTIVE, WHICH EMPHASIZES PROTECTION OF THE INTERESTS OF INDIVIDUAL CITIZENS AND DISREGARDS THE MOTIVES BEHIND GOVERNMENTAL ACTIONS, OR FROM A LIMITATION PERSPECTIVE, WHICH EMPHASIZES REGULATION OF GOVERNMENTAL CONDUCT. THE TWO PERSPECTIVES ARE NOT MUTUALLY EXCLUSIVE, BUT SELECTION OF ONE OVER THE OTHER CAN PRODUCE DIFFERENT LEGAL RESULTS. THE SUPREME COURT HAS NOT EXPRESSLY ACKNOWLEDGED THE EXISTENCE OF A CHOICE OF PERSPECTIVES, BUT APPARENTLY HAS ADOPTED THE INDIVIDUAL PERSPECTIVE BY FREQUENTLY EMPHASIZING THAT FOURTH AMENDMENT RIGHTS ARE PERSONAL RIGHTS. HOWEVER, THE LIMITATION PERSPECTIVE UNDERLIES THE DEVELOPMENT OF THE FOURTH AMENDMENT AND OCCASIONALLY APPEARS IN SUPREME COURT OPINIONS. IN LIGHT OF THE FACT THAT DECISIONS IN FOURTH AMENDMENT CASES MAY DEPEND ON THE PERSPECTIVE EMPLOYED BY THE COURT, BOTH PERSPECTIVES ARE ANALYZED AND EVALUATED AS DETERMINANTS OF THE REACH OF FOURTH AMENDMENT PROTECTION IN SPECIFIC SITUATIONS. IT IS CONCLUDED THAT THE INDIVIDUAL PERSPECTIVE ALONE IS AN INADEQUATE MODEL WITH WHICH TO EVALUATE ALL INTERESTS RELEVANT TO FOURTH AMENDMENT PROBLEMS. THE COURTS MUST ACCOMMODATE BOTH PERSPECTIVES IN FOURTH AMENDMENT DECISIONS. BY EMPHASIZING THE FLEXIBILITY OF THE AMENDMENT, COURTS COULD RECOGNIZE AN ABSOLUTE RIGHT TO PRIVACY IN CERTAIN SITUATIONS, A REQUIREMENT FOR POLICE TO OBTAIN A SEARCH WARRANT IN OTHERS, AND A GENERAL CONCEPT OF REASONABLENESS TO LIMIT GOVERNMENT POWER IN STILL OTHERS. ACCEPTANCE OF THE HISTORICAL AND THEORETICAL VALIDITY OF THE LIMITATION PERSPECTIVE AND RECOGNITION OF THE CONCEPTUAL PROBLEMS INHERENT IN THE INDIVIDUAL PERSPECTIVE CAN ELIMINATE JUDICIAL RELUCTANCE TO REGULATE GOVERNMENT ACTION BY USING THE FOURTH AMENDMENT. A TENTATIVE MODEL FOR USING THE LIMITATION PERSPECTIVE IN SOLVING FOURTH AMENDMENT PROBLEMS IS PROVIDED. (AUTHOR ABSTRACT MODIFIED--LKM)
Index Term(s): Judicial decisions; Right of privacy; Search and seizure; US Supreme Court
To cite this abstract, use the following link:
http://www.ncjrs.gov/App/publications/abstract.aspx?ID=51678

*A link to the full-text document is provided whenever possible. For documents not available online, a link to the publisher's website is provided. Tell us how you use the NCJRS Library and Abstracts Database - send us your feedback.