New Law Review Article: Double Reasonableness and the Fourth Amendment

Sam Kamin & Justin Marceau, Double Reasonableness and the Fourth Amendment, 68 U. Miami L. Rev. 589 (2014). Introduction:

Legal doctrine is replete with reasonableness tests. In fact, it is unlikely that any area of law lacks a reasonableness test at the center of a core doctrine. The Fourth Amendment is certainly no exception; the textual prohibition of unreasonable searches and seizures has led the United States Supreme Court to conclude that the “ultimate touchstone of the Fourth Amendment is reasonableness.” What makes the Fourth Amendment unique, however, is the relatively recent insistence on not one but two tiers of reasonableness review in adjudicating Fourth Amendment claims. Both the substance of the right and the availability of a remedy are currently assessed under overlapping, but distinct, reasonableness tests. Unfortunately, this double reasonableness review does not double the reasonableness of the ultimate results obtained; instead, it has something of the opposite effect. Double reasonableness blurs the lines between right and remedy. Previous scholarship has identified the strong link—or equilibration—between constitutional rights and remedies, but in this Article we go one step further and develop the claim that the content of the right itself is becoming increasingly obscure. The substance of the Fourth Amendment is stuck in a fog of remedial decisions, and double reasonableness is the chief culprit.

Neither of the Supreme Court’s two levels of reasonableness analysis is inevitable or mandated by either the text or history of the Fourth Amendment. In fact, for most of the last half century, substantive Fourth Amendment law was comprised of strong presumptions and predictable rules. Only recently has the substance of Fourth Amendment law shifted away from clear rules toward a reasonableness standard in all contexts. Likewise, for most of its history the exclusionary rule was viewed as an automatic remedy for all Fourth Amendment violations. It has been only in the last decade that this per se rule has given way to a neutered balancing test. Accordingly, evidence today will be suppressed in a criminal case only if there is unreasonableness under each inquiry—substantive and remedial. It is now possible to speak of that famous conundrum of reasonable unreasonable searches—those searches that are sufficiently unreasonable that they deprive the defendant of his Fourth Amendment right, but not so unreasonable that any remedy will be forthcoming.