The Evolution of Search and Seizure Law: The Changing Definition of 'Reasonable Search'

Abstract

In the past five years, the Supreme Court has upheld numerous warrantless searches and seizures. What has permitted this increased in searches determined to be constitutional? Traditionally, the Supreme Court utilized a test-based approach in determining whether a search or seizure is constitutional. I argue that recent decisions justifying search programs have relied on a reasonableness balancing approach. Why has the Supreme Court abandoned the test-based approach in favor of a reasonableness analysis? To answer this question, I examine Supreme Court decisions dealing with search and seizure programs, determine common patterns in past decisions and in recent reasonableness decisions, and compare these patterns. To examine the evolution of search and seizure law, I: (i) track the development of the many tests used to justify warrantless searches and seizures: (ii) determine when the court abandoned the established test in favor of a reasonableness or ‘totality of the circumstances’ approach: and (iii) examine the rationale for this change. Although the Supreme Court offers no rationale for this turn to a reasonableness inquiry, there is strong reason to conclude that the terrorist attacks of September 11th, 2001 substantially affected Supreme Court Fourth Amendment adjudication.