Research Handbooks in Law and Economics series
Edited by Thomas J. Miceli and Matthew J. Baker
Chapter 11: Search, seizure and false (?) arrest: an analysis of fourth amendment remedies when police can plant evidence
The prosecution of criminal defendants is a process fraught with uncertainty, and requires a delicate balance between the search for the truth and the protection of citizensí right to be free from unreasonable invasions of their privacy. An important legal safeguard in this context is the Fourth Amendment to the U.S. Constitution, which provides that: ëThe right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause. . .í (U.S. Const., Amendment IV). The Supreme Court has interpreted this amendment to require that police, when feasible, obtain a warrant prior to search, which a judge will only issue on a finding of probable cause (the ëwarrant requirementí), and further, that any illegally obtained evidence will be excluded from trial (the ëFourth Amendment exclusionary ruleí). Scholars have vigorously debated the desirability of these remedies for violations of the Fourth Amendment. A major focus of the debate has been on the relative merits of the warrant requirement and exclusionary rule on the one hand, and a reasonableness standard enforced by tort liability for the government or its agents on the other. Amar (1997, Chapter 1), for example, argues that the plain language of the Fourth Amendment does not require warrants, probable cause, or exclusion of evidence, but only that searches and seizures be reasonable.
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