Copyright (c) 2000 The Columbia Law Review
Columbia Law Review
ARTICLE: THE FOURTH AMENDMENT AND COMMON LAW
Tulane Law Review
100 Colum. L. Rev. 1739
David A. Sklansky*
In the Commons in May 1641 a member said "Antiquity without truth (as saith Cyprian) is but ancient error." It is agreeable that he had to quote an ancient authority in order to reject the authority of antiquity. 1
Famously short on specifics, the opening clause of the Fourth Amendment guarantees "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." 2 For most of the past half-century, the interpretation of this guarantee has had little to do with its origins. To identify "searches and seizures" governed by the Amendment, the Supreme Court since Katz v. United States has asked whether a particular investigative technique invades an "expectation of privacy... that society is prepared to recognize as 'reasonable'" 3 - a standard that pointedly directs attention to the present, not to the past. In determining whether a search or seizure is "unreasonable" and hence forbidden, the Court since Terry v. Ohio has balanced the need for the intrusion against the burdens it imposes - an explicitly functional test, requiring no historical inquiry. 4 Fittingly, the Court's reasoning in Katz and Terry itself focused on the realities of modern law enforcement rather than the eighteenth-century origins of the Fourth Amendment. Terry's balancing test for the lawfulness of searches and seizures has coexisted uneasily with a collection of per se rules and exceptions that at least in some circumstances require warrants based on a showing of probable ...
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