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Constitution and the Common Law

NCJ Number
Criminal Justice Journal Volume: 7 Issue: 1 Dated: (Fall 1983) Pages: 49-60
D M Harris
Date Published
12 pages
The present United States search and seizure rules are not necessarily mandated by the Constitution; modifying them to resemble those used in Great Britain can, for the most part, be reconciled with the language, history, and purpose of the fourth amendment.
The search and seizure rules articulated by the United States Supreme Court during the early years of the Republic are very similar to the search and seizure rules followed in Great Britain today. These British rules are almost certainly those who drafted and voted for the fourth amendment. Prior to the fourth amendment, common law dictated that searches of private premises generally required warrants, as did arrests for misdemeanors committed outside the presence of the arresting officer. In all other circumstances, warrants were unnecessary. It follows that the differences between current United States search and seizure rules and those of the United Kingdom are not mandated by the Constitution. Rather, they are the products of historical accident which policymakers should be able to reverse. As a matter of policy the exclusionary rule should probably be retained for warrantless home searches, warrantless wiretaps, and other instances of egregious police misconduct. In other circumstances, however, limited experimentation with the search and seizure rules now followed in Great Britain and originally followed in the United States should be permitted. Thirty-eight footnotes are provided.


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