In this article, Bookspan declares her dissatisfaction with the current Fourth Amendment law.  The Court's emphasis on reasonable searches has led to a number of exceptions to the warrant requirement, allowing for warrantless searches of greenhouses, warehouses, and motor vehicles among others.  The lack of clear rules regarding the warrant requirement and probable cause have left courts, scholars, and police in confusion.  The cause of such chaos is due to the  Court's attempt to include evidence around the exclusionary rule that establishes that all evidence unconstitutionally obtained is barred.  The law states that a warrantless search is unconstitutional unless it fits within an exception.  The problem that exists is that there are now too many exceptions for the rule to create workable guidelines.  Bookspan cites five different developments in the law that have rendered the current Fourth Amendment collapse.
      First, Bookspan finds that the Court has narrowed the terms search and seizure so that fewer types of activities fall under the Fourth Amendment.  In Katz v. United States, the Court established a two part test that first requires a subjective expectation of privacy and that the expectation must objectively be one that society recognizes as reasonable.  Since this decision, later courts have placed more emphasis on the second prong of the test and have decided in many cases expectations of privacy is not reasonable.  Since this time, the Court has decided that a drug-detecting canine sniff or a chemical test for narcotics does not qualify as a search.  Furthermore, using the justification of society's reasonableness, decisions have limited areas in which individuals have a valid right of privacy (i.e. not within the sealed hull of a boat, fenced property, or a greenhouse).  Thus by finding these activities did not constitute a search, the Court was free to establish that a warrant was unnecessary.
      Secondly, the Court has limited who has standing to challenge a Fourth Amendment violation.  While previous decisions have allowed automatic standing for a alleged Fourth Amendment violation, three recent decision have overruled the automatic standing rule.  Rakas v. Illinois denied passengers in a car standing, States v. Salvucci demanded that a legitimate expectation of privacy was required for standing on Fourth Amendment violations and did not exist in the home of the defendant's mother, and Rawlings v. Kentucky held that no legitimate expectation of privacy existed in another individual's purse.  Limiting standing for Fourth Amendment violations allow the Court to circumvent the exclusionary rule.
 Furthermore, the Court in Stone v. Powell has eliminated Fourth Amendment infringements from constitutional errors worthy of habeas corpus.  Thus, prisoners who have used all of their state appeals can no longer have their case reviewed by federal courts for Fourth Amendment violations.  Bookspan also finds that the extensive lists of exceptions to the warrant requirement has punched holes in the protection of the Fourth Amendment.
      Finally, and perhaps most importantly, Bookspan finds that the Court's emphasis on the reasonableness test under the Fourth Amendment is its downfall.  By focusing on the overall reasonableness of the search, courts are free to find that a warrant or probable cause are only one element of reasonableness to consider.  Bookspan finds that the case of  New Jersey v. T.L.O. which held that a warrant was not needed in a school search, signals the Court's willingness to focus only on reasonableness in Fourth Amendment analysis.  This new policy allows the Court to find most searches reasonable regardless of a warrant or probable cause.
      Bookspan's solution to this dilemma is for the Court to adopt a standard in which every warrantless search is presumptively unreasonable.  The government would then have the burden of proof to demonstrate evidence of a true emergency.  Thus, the presumptively unreasonable standard would eliminate most of the current exceptions to the Fourth Amendment.  This policy would provide clarity for courts and police alike, and revitalizes the Fourth Amendment.

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