The Volokh Conspiracy
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Writing a Crim Pro Casebook: How Do You Cover "Reasonableness"?
A massive amount of complex material; here's how I decided to present it.
In a recent post, I wrote about how I organized the Fourth Amendment "search" materials for the forthcoming 16th edition of the Kamisar LaFave & Israel Criminal Procedure casebook. Now I want to cover the flip side: Once you have covered the law of searches and seizures (Chapter 6), how do you present the law of when searches and seizures are unreasonable — and therefore unconstitutional (Chapter 7)? As with searches, I'll start with why it's really hard to figure out the best approach. Then I'll turn to my approach.
First, the challenge. Teaching the law of when searches and seizures are unreasonable (and therefore unconstitutional) is very difficult because of the scale of the problem. Understanding reasonableness requires mastering a massive number of cases, a massive number of doctrines, and an incredibly wide range of facts —all of which are connected to each other. There are well over 100 important Supreme Court cases to cover, in additional to tons of important lower-court cases to consider; a large number of exceptions to the warrant requirement to learn; how the exceptions to the warrant requirement apply often depends on the context (for search incident to arrest, for example, there's one rule for people, another for places, and a third rule for cars); some doctrines themselves divide into many sub-doctrines (exigent circumstances can be about evidence destruction, or hot pursuit, or emergency aid); and some doctrines apply across different contexts and others don't (consent applies broadly, while community caretaking is only for cars). Some are bright line rules; others are vague standards. Some are rooted in history, others are pretty new. To top it off, many of the doctrines are controversial and need to be treated with careful context, such as stop and frisk, excessive force, and the knock-and-announce rule.
How on earth do you cover all of that? Where do you even start? How can you present materials that build a complete picture of the relevant law, presenting principles in an order that builds step by step through the fact patterns and principles and generational development and doctrine? It's hard.
Here's the approach I took for the new 16th edition.
The first topic is the law relevant to obtaining and executing search warrants. It starts with the law of probable cause, with the main cases being Illinois v. Gates (probable cause to search) and Maryland v. Pringle (probable cause to arrest), as they are in the current casebook. Then the materials present the rules for obtaining warrants and the rules for executing warrants, including the knock-and-announce rule (covered with United States v. Banks as the main case). Because the law of executing warrants is intrinsically linked to the plain view exception, and yet plain view also applies in the warrantless section and is good to know at the outset, this section also includes a plain view exception subsection, using the main case of Arizona v. Hicks. The purpose of this first section is to cover classic search warrant doctrine, making the warrant-related doctrines a sort of reference point for the rest of the chapter's discussion of warrantless reasonableness doctrines.
With the law of warrants under our belts, the chapter then turns to the primary rules of reasonableness that apply in the four basic categories of Fourth Amendment searches and seizures: searches and seizures of (1) homes, (2) containers, (3) cars, and (4) persons. As Fourth Amendment nerds know, the law of reasonableness often applies differently in these four settings. So to get grounded, especially in the warrantless context, you need to jump into the law of reasonableness in these four distinct settings — learning the main exceptions to the warrant requirement that arise in those settings. (As an aside, this also happens to almost perfectly track the language of the Fourth Amendment— which provides rights against unreasonable searches and seizures of "persons, houses, papers, and effects"—although, perhaps surprisingly, the Court has not rooted this distinct treatment by reference to the constitutional text.)
The current version of the casebook has that basic approach, but I reordered it and added a section on containers, the fourth category. I decided to start with the law of house searches because its the classic fact pattern that inspired the enactment of the Fourth Amendment; it's the reference point from earlier materials on warrants and probable cause; and many of the exceptions to the warrant requirement were introduced in that setting.
Within the law of house searches, there are three subsections. We start with the basic warrant requirement with Payton v. New York—and, in the notes, related cases. The second subsection covers the law of exigent circumstances, using Warden v. Hayden and Kentucky v. King as main cases. The third subsection addresses the search incident to arrest doctrine, featuring Chimel v. California. The purpose of this section is to cover the main rules for searching houses; to see how the warrant requirement often applies; and to also introduce the main exceptions to the warrant requirement that might apply in the house setting, exigent circumstances and search incident to arrest.
Next up is a very short section on the reasonableness rules for containers. If a container is outside a house, such as an item of mail, or a suitcase, or a purse, does the warrant requirement still apply? And can it be detained temporarily, and if so, when? I thought it useful to cover these issues in a short but distinct section after house searches, with United States v. Chadwick as a main case, is it starts the discussion of how far warrants should go and also sets up the need contrast with car searches and seizures in the next section.
As mentioned, the next section is on car seizures and searches. Here the Supreme Court has given the police a lot of power to search and seize, in considerable contrast to houses and containers. The section explores those doctrines and considers how they contrast with home/container cases, on what justification, and what the boundaries are between the car doctrines and the house/container cases. It starts with the law of stopping cars, covering Whren v. United States and the law of traffic stops (with notes on what is permitted during a stop and how long they can go). Next up is the automobile exception, with the main cases being California v. Carney (exploring the line between houses and cars) and California v. Acavedo (exploring the line between cars and containers). Then we cover searches of a car incident to arrest, with Arizona v. Gant the main case.
The materials then cover seizures and searches of persons. First up is the law of arrest, with the main cases being United States Watson (with notes on Gerstein and County of Riverside) on the cause and judicial review requirements, and Atwater v. City of Lago Vista (with notes on Moore) on what crimes can lead to arrest. The materials then cover search incident to arrest for persons, with Robinson as the main case and Riley as the lead note in contrast. The materials then cover search and seizure after arrest, with notes on subsequent DNA tests, strip searches, and the like.
With that basic set of rules done, and with the law of arrests and person searches fresh, the materials then turn to stop and frisk. The stop and frisk materials are divided into five parts: first, an introduction featuring Terry v. Ohio and a summary of the basic doctrine; next, caselaw on reasonable suspicion to stop (with Illinois v. Wardlow and Kansas v. Glover as the main cases); third, a short subsection on what can happen during a Terry stop and how long they can go; fourth, a short subsection on cause to frisk; and fifth, a section on how far frisks can extend (with Minnesota v. Dickerson as the main case). Throughout there is discussion of how the rules work together and empirical studies of their workings, a number of which focus on racial disparities in stop and frisk practices. The contrast with the law of arrest is designed to keep an implicit question in mind; is allowing lesser stops and lesser searches based on lesser cause consistent or inconsistent with previous doctrines, such as the law of arrests and the law of automobile stops? How much power do the police have, and which doctrines are giving it to them?
With stop and frisk now under our belt, the materials turn to the law of excessive force. Excessive force is divided into two parts. The first part is the doctrinal framework for when force is excessive, with Graham v. Connor as the main case and notes on the major Supreme Court decisions and summaries of lower-court rules and standards on this question. The second part is the law of qualified immunity, with City of Tahlequah v. Bond as the main case and notes on how qualified immunity works, views about its reform, and the like.
Almost done, I promise! There are just two topics to go. The next one up is administrative searches and the special needs exception. There are a lot of cases in this area, but they're all thematically related, so this section takes the view that you can study one and get notes summarizing the rules for how the others apply. The one fact pattern studied in more detail here is drunk driving checkpoints, with the main case being Michigan Department of State Police v. Sitz. Notes cover other situations, like border search rules; probation searches; national security searches; safety inspections; government workplaces, etc.
Last up is the law of consent searches, which is divided into two sections. It starts with the consent standard under Schneckloth, with notes on topics like the pscyhology of consent, empirical studies, the scope of consent under Jimeno, and the like. The last subsection is on third-party consent, with the main case being Fernandez v. California (which has useful discussions of Matlock and Randolph) and notes explaining the scope of third-party consent in common situations as well as the apparent authority doctrine. The last note then brings the chapter full circle to the beginning, asking students to consider what makes a search and seizure reasonable. Is there really a warrant requirement, with a few "limited" exceptions? Is it all about reasonableness balancing, with warrants only being reserved for a few situations? Or is it a quirky historical mix of the two?
