Copyright (c) Trustees of Boston University 1997.
Boston University Law Review
ARTICLE: THE COMPLEXITY OF THE FOURTH AMENDMENT: A HISTORICAL REVIEW
77 B.U.L. Rev. 925
Tracey Maclin *
History, someone once said, is "an argument without an end." 1 Supreme Court opinions on the Fourth Amendment 2 suggest that some of the Justices secretly wish that the argument had never begun. Why concern oneself with history when the issue is whether a Memphis, Tennessee police officer acted reasonably in shooting Edward Garner, a skinny and unarmed 15-year-old black kid, in the back of the head because Garner fled the scene of a suspected house burglary? 3 Why comb through historical records when the issue is whether the police must identify themselves before breaking down doors to execute narcotics search warrants in high-crime neighborhoods? 4 In order to answer these questions, and to understand what the Fourth Amendment means today, one has to understand the meaning history impressed upon the Amendment in 1791.
Such high stake controversies may cause the Court to question the relevance of history to its modern Fourth Amendment rulings. 5 Still, the temptation to resort to historical arguments is hard to resist. After all, the liberty secured by the Fourth Amendment - the right to be free from unreasonable search and seizure - is a "made in America" freedom, having it origins in the American colonists' battle against heavy-handed British law enforcement methods. 6
Although the Fourth Amendment had its genesis in the era of the Founding Fathers, the Supreme Court has not been consistent in juxtaposing the history of the Amendment with modern law enforcement techniques. In one case, history provides the driving ...
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