The legal and social issues that have emerged out of the doctrine that people in America have a right against unreasonable government instituted searches and seizures have dominated the dialogue and controversy in the American criminal justice system over the last three decades. A large portion of the debate has centered around the controversial exclusionary rule, which frees the sometimes unmistakably guilty because of irregularities in police procedure.
The notion that society suffers when criminals go free because of the constable's blunder has struck a decidedly political note in the discussion over criminal justice reform. Many observers are quick to note that the protections of a free society are to benefit the law abiding as well as the criminal. Yet others point out that the offender should not be able to behave lawlessly at the expense of others and with the assistance of the law. On the other side of the issue is the painful reality that the power asserted over citizens has often been exercised and abused on racial, ethnic and economic terms.
This Article is an attempt to offer a meaningful look at the current state of search and seizure principles being applied (or not being applied) by the Supreme Court. It also will attempt to offer some solutions to the primary problem of search and seizure law - the absence of protection from abuse of police discretion, particularly during the situation in which the police allegedly obtain consent to search suspects. While police must have some measure of discretion, they must also behave reasonably and honestly in the execution of their duties. The current judicial retreat from the imposition of specific rules of conduct on police has left a void in privacy protection and presents the opportunity for search and seizure overreaching.
In this Article, I propose a legislative solution that will balance the need for controlled discretion in search and seizure situations with the desire for a high level of accountability for police officers on the street and those responsible for policy, supervision, and the training of street level officers. In the pursuit of reaching a consensus on the proper balance between personal freedom and crime control, particularly where racial bias might be alleged, a useful starting point is to adjust the burden of proof in certain types of search cases and to require police departments to keep records of police-citizen encounters.
Accountability Solutions in the Consent Search and Seizure Wasteland, 79 Nebraska Law Rev. 711 (March 2001)