Writing a Crim Pro Casebook: How Do You Cover “Reasonableness”?
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
Article from Reason.com
