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     The cases interpreting the Fourth Amendment present a confusing standard for police, judges, and scholars.  Bradley notes that many Supreme Court cases regarding the Fourth Amendment are contradictory and fail to establish a clear policy.  Bradley feels the reason for the confusion is the fact that the Court is reluctant to find many searches unconstitutional and thus bar evidence from the case.  Instead of adhering to the rule that all evidence unconstitutionally obtained is barred, the Court has developed a number of exceptions to the probable cause and warrant requirement of the Fourth Amendment (i.e. stop and frisk, plain view, open field seizures, search of a person in custody, airport searches).
     Bradley urges that the current view of the Fourth Amendment needs to be deserted altogether.  Instead, Bradley outlines two proposals that would establish a clear interpretation of when a warrant is required.  Model One's proposal establishes that any search or seizure has to be reasonable under the circumstances.  Each search would be evaluated on a case by case basis by the court to determine its validity.  Bradley states that factors for the court to determine reasonableness should be whether probable cause, a warrant, or exigent circumstances existed.  Conditions such as the nature of the intrusion, the strength of the evidence obtained by police, the dangerousness of the suspect, and the seriousness of the offense should also be taken into account.  This model would allow the court to respond appropriately in determining when evidence should be excluded.  At the same time, police would know that they are only required to act reasonably rather than attempting to follow complex, unclear rules under the Fourth Amendment.  Bradley points out that this type of standard works well in American tort law and Germany's search and seizure practices.  Under Model One, the court will be sensitive to the particular facts in each case and not exclude evidence due to subtle technicalities.
     In contrast to Model One, Bradley's Model Two establishes a clear and explicit rule that all searches require a warrant.  In order for police to have access to warrants, the court will need to accept oral warrants given by telephone and taped by the magistrate.  This rule would provide clear guidelines to police, and in Bradley's opinion, only present a minor inconvenience that police would soon adapt to.  In turn, all of the confusion that the current Fourth Amendment presents will be eliminated.  The police will be assured that any search authorized by a magistrate will be valid.  However in situations such as border searches, driver's license checks, car inventory searches, and stop and frisks would be exempt.
     The current confusion facing the Supreme Court in regard to the Fourth Amendment is due to the fact that the Court has attempted to create a confusing balance between Model One and Model Two.  Although adapting one of the models would present a new standard, remaining in the current confusion of the Fourth Amendment presents no solution.
 

Article Summary by: Corrie Noir
Wake Forest University School of Law 1999