Epstein on Recent Search and Seizure Cases in SCOTUS

Searches and Seizures: Reasonable or Unreasonable?
Richard A. Epstein
Defining Ideas
April 23, 2013

Matters of criminal procedure were not much in evidence in the aftermath of the bombings at the Boston Marathon. Nary a peep of protest was raised against the massive lock-down and manhunt that followed hard on the heels of that senseless tragedy.

But now that some degree of normalcy has returned, it is important to think about these procedural issues. To that end, two recent Supreme Court cases address law enforcement and the Fourth Amendment. Florida v. Jardines deals with searches in connection with illegal drug trafficking and Missouri v. NcNeely addresses compelled blood tests on suspected drunk drivers.

Both of these cases return to fundamental questions that have previously divided the Court. What is remarkable about the Supreme Court’s recent Fourth Amendment jurisprudence is that these divisions are not apparent. The opinions in both cases lack reference to the endless theoretical debates between the hard-nosed originalists and the equally insistent defenders of the “Living Constitution.” In consequence, these close decisions have generated strange alliances that have transcended the deep five-to-four conservative-liberal split.