Student Review:

      After labeling the Fourth Amendment as an embarrassment, Amar provides an extensive review of the text and history of the Fourth Amendment, and then offers his suggestions for improvement.  The current decisions of the Supreme Court regarding the Fourth Amendment are confusing and contradictory, and the Court still has not provided reasons for the complexity.  Amar suggests that the Fourth Amendment is misunderstood itself, often linked to Criminal Procedure classes when it instead applies to both civil and criminal law.  Teaching the Fourth Amendment alone also separates it from its connection with other important constitutional amendments, especially with the Seventh Amendment.  Amar suggest that scholars and the Court return to a review of the first principles of the Fourth Amendment.
      First, Amar asserts that the Fourth Amendment does not require warrants for all searches and seizures.  Amar finds no historical support that the founders intended a warrant to be necessary for a reasonable search.  The Second Congress allowed arrests without warrants, searches pursuant to arrests were not challenged, and a constable who searched without a warrant and actually found stolen goods could not be challenged.  These historical examples demonstrate that there was not a warrant requirement for all searches.  Likewise, in modern situations such as hot pursuits, consensual searches, and plain view searches, a strict warrant requirement just does not make common sense.  Thus, these historical and modern examples demonstrate that warrantless searches are not per se unreasonable.
      Secondly, Amar demonstrates that the warrant clause of the Fourth Amendment was not intended to encourage warrants, but rather to limit them.  Historically, broad warrants were issued by judges providing a justification for intrusive actions by government officials.  Judges were seen as individuals controlled by the British crown.  The remedy for an unreasonable search was granted by a jury of their peers.  Thus, the language of Fourth Amendment was formed to limit situations in which warrants could be granted.  Early Americans favored a linkage of the Fourth and Seventh Amendment which allowed a civil jury to address concerns over illegal searches and seizures.
      Furthermore, Amar states that the probable cause standard only applies to warrants, not all searches and seizures.  He points out that other warrant requirements such as an oath or affirmation was never applied to all searches and seizures.  While some intrusive searches would need probable cause, other searches (such as a metal detector or public view searches) do not need a probable cause standard.  Rather, the reasonableness of the search should be the most important factor, and this standard can be tailored to various situations with different levels of intrusiveness.  Likewise, the Court's exclusionary rule is not the proper remedy for evidence obtained from unreasonable searches.  Amar demonstrates that the development of this rule was confusing and taken out of its original context, which was to initially prevent the words of a diary to testify in a criminal case.  Instead of retaining the exclusionary rule, Amar suggests that money damages would be a better remedy for individuals who are subjected to unreasonable searches.
      Amar's suggestions for a reinterpretation of the Fourth Amendment include a return to the historical and textual basis of the Fourth Amendment.  A warrant or probable cause should not be the standard for searches, but rather the central issue should be whether the search was reasonable.  This allows the court to consider the intrusiveness of the search and use common sense to determine when a search is unreasonable.  Furthermore, the concept of reasonableness should also take into account other constitutional provisions, so that situations such as a search of a newspaper should require additional scrutiny.  Such an inquiry would take into account issues of race, class, and sex.  Amar also suggests that the remedy for unreasonable searches should be a suit against the officer and the government itself.  If a search is found unreasonable by a jury, the government would be liable and forced to monetary damages (including punitive costs).  Amar also envisions class actions and attorney's fees for plaintiffs.  Thus, the common sense of a jury provides the final measurement of reasonableness.

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