While the Supreme Court stresses the importance of warrants and has repeatedly referred to searches without warrants as "exceptional,"178 it appears that the greater number of searches, as well as the vast number of arrests, take place without warrants. The Reporters of the American Law Institute Project on a Model Code of Pre-Arraignment Procedure have noted "their conviction that, as a practical matter, searches without warrant and incidental to arrest have been up to this time, and may remain, of greater practical importance" than searches pursuant to warrants. "[T]he evidence on hand . . . compel[s] the conclusion that searches under warrants have played a comparatively minor part in law enforcement, except in connection with narcotics and gambling laws."179 Nevertheless, the Court frequently asserts that "the most basic constitutional rule in this area is that 'searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specially established and well-delineated exceptions."'180 The exceptions are said to be "jealously and carefully drawn,"181 and there must be "a showing by those who seek exemption . . . that the exigencies of the situation made that course imperative."182 While the record does indicate an effort to categorize the exceptions, the number and breadth of those exceptions have been growing.
178 E.g., Johnson v. United States, 333 U.S. 10, 14 (1948); McDonald v. United States, 335 U.S. 451, 453 (1948); Camara v. Municipal Court, 387 U.S. 523, 528-29 (1967); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352-53, 355 (1977).
179 American Law Institute, A Model Code of Pre-Arraignment Procedure, Tent. Draft No. 3 (Philadelphia: 1970), xix.
180 Coolidge v. New Hampshire, 403 U.S. 443, 454-55 (1971) (quoting Katz v. United States, 389 U.S. 347, 357 (1967)); G.M. Leasing Corp. v. United States, 429 U.S. 338, 352-53, 358 (1977).
181 Jones v. United States, 357 U.S. 493, 499 (1958).
182 McDonald v. United States, 335 U.S. 451, 456 (1948). In general, with regard to exceptions to the warrant clause, conduct must be tested by the reasonableness standard enunciated by the first clause of the Amendment, Terry v. Ohio, 392 U.S. 1, 20 (1968). The Court's development of its privacy expectation tests, discussed under "The Interest Protected," supra, substantially changed the content of that standard.
Last modified: June 9, 2014