ERODING THE FOURTH AMENDMENT: THE BURGER COURT AND THE WARRANTLESS SEARCH EXCEPTION: SOME POST-1970 DEVELOPMENTS

JOHN DAVID THOMPSON, University of Nebraska - Lincoln

Abstract

Purpose. The purpose underlying this study is directed toward an examination of the judicial attitude manifested by the current Burger Court toward the Fourth Amendment. The primary emphasis, in this regard, is placed on an analysis of how the Burger Court has viewed attempts to expand the scope of the numerous judicially sanctioned exceptions to the Fourth Amendment's "warrant" requirement. Procedure. Insomuch as there are many recognized exceptions to the Fourth Amendment's "warrant" requirement, this study is concerned with an in depth examination into three of the most prominent and most litigated exceptions, these being, the consent search exception, the Terry "stop and frisk" exception, and the Carroll automobile exception. An examination of some of the most important Supreme Court decisions rendered since 1970 in each of the above type cases, noting the rationale underlying the majority or plurality opinion, as well as any appropriate dissenting opinion, was utilized in order to try and determine the attitude of the Burger Court toward either or restricting the scope of these various warrantless search exceptions. Selected Findings. The most prominent finding uncovered as a result of this study was that the Burger Court has, for the most part, acquiesced in the efforts by law enforcement authorities to broaden or expand the scope of various exceptions to the Fourth Amendment's "warrant" requirement. Such a situation has consequently led to an erosion of the individual citizen's Fourth Amendment rights. Another very interesting finding revolved around the fact that while the Burger Court has been willing to expand the scope of these warrantless search exceptions at the expense of individual rights, such action by the Court has been predicated on differing considerations. In other words, the Supreme Court decisions rendered since 1970 in the areas of consent searches, "stop and frisk" searches, and automobile searches have not been noteworthy for the uniform and consistent treatment which they received by a majority of the Court. However, it might be said that erosion of the Fourth Amendment has come from two different vantage points or perspectives, as far as the way in which a majority of the Burger Court has elected to discuss the relevant Fourth Amendment considerations in each case and interpret the merits of the conflicting interests involved in each such case. On one hand, the Burger Court, especially in the area of consent searches and "stop and frisk" searches, has explicitly rendered decisions which have expanded the scope of the warrantless search exceptions in these type cases. A good example of this approach is manifested in the Court's majority opinion in Schneckloth v Bustamonte in the consent search context and Pennsylvania v Mimms in the "stop and frisk" area. The other basis or perspective by which the Burger Court has come to expand the scope of these warrantless search exceptions is illustrated by the Court's handling of the automobile search exception. In this area the Burger Court, more by implication rather than by explicitly expanding the scope of the exception, has also eroded Fourth Amendment rights. More specifically, the Burger Court's confused and contradictory assessment of the parameters surrounding the automobile search exception has allowed lower federal and state courts to expand the scope of this exception.

Subject Area

Political science

Recommended Citation

THOMPSON, JOHN DAVID, "ERODING THE FOURTH AMENDMENT: THE BURGER COURT AND THE WARRANTLESS SEARCH EXCEPTION: SOME POST-1970 DEVELOPMENTS" (1980). ETD collection for University of Nebraska-Lincoln. AAI8018673.
https://digitalcommons.unl.edu/dissertations/AAI8018673

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