NCJ Number
115892
Journal
Criminal Law Bulletin Volume: 25 Issue: 2 Dated: (January-February 1989) Pages: 29-56
Date Published
1989
Length
55 pages
Annotation
To test the hypothesis that the resignation of U.S. Supreme Court Justice Potter Stewart's resignation resulted in a shift from a prescriptive to an adjudicative approach in cases involving the admissibility of evidence derived from warrantless searches, a review was conducted of 69 cases decided between 1975 and 1988.
Abstract
Results indicate that following Stewart's departure in 1981, reasonability became the preferred approach to such cases. Between 1975 and 1981, the categorical approach was used to decide 23 cases; while reasonableness was employed in only 8. After 1981, 20 cases were decided on the reasonableness standard; while 18 were decided using the categorical approach. Between 1984 and 1988, 19 cases employed reasonableness; while 10 employed the categorical approach. Further, with the ascendance of the standard of free-form reasonability, more warrantless searches and seizures were approved. Since Stewart's retirement, the Court has excluded evidence from a warrantless search or seizure in only 23.7 percent of the cases it has reviewed. Factors possibly contributing to this change in perspective are considered. An index of cases and a comment are included. 45 footnotes.