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43 McGeorge L. Rev. 23 (2012)
Marijuana Prohibition and the Shrinking of the Fourth Amendment

handle is hein.journals/mcglr43 and id is 25 raw text is: Marijuana Prohibition and the Shrinking of the Fourth Amendment Susan F. Mandiberg* 1. INTRODUCTION This article addresses the effect that criminalization of marijuana (as opposed to drugs in general) may have had on the development of Fourth Amendment law. Many commentators have thought that the War on Drugs contributed to a shrinking of protections against unreasonable searches and seizures.' Our focus is to determine what role marijuana might have played in that development. The challenge, of course, is to imagine an alternate universe in which other drugs (for example, heroin, cocaine, and methamphetamine) are illegal but marijuana is not. To attempt to meet that challenge, I have focused first on trial and appellate opinions from state and lower federal courts-mainly from the 1960s-and then on Supreme Court cases from 1970 to the present. All of these cases involve adult criminal defendants who have moved to suppress seized marijuana evidence on Fourth Amendment grounds.2 Changes in the social and legal contexts make it useful to address these cases in chronological stages. Part II of this article covers the cases decided prior to 1970, the beginning of the era in which a critical mass of marijuana-related search-and-seizure cases began to appear in the Supreme Court. After a brief * Susan F. Mandiberg, Jeffrey Bain Faculty Scholar and Professor of Law, Lewis & Clark Law School, Portland, Oregon. The author wishes to thank the participants in the McGeorge School of Law symposium, especially Michael Vitiello, who challenged me to consider this topic, and Sam Kamin, who encouraged me to think more about smell. Many thanks to my able research assistants Alex Verbeck, Meera Gajjar, and Laurel Smith and to my Administrative Assistant Shari Lachin for her extraordinary help. 1. There is much to support the notion that the war on drugs in general is largely responsible for the current state of search-and-seizure law. See, e.g., Hartness v. Bush, 919 F.2d 170, 174 (D.C. Cir. 1990) (Edwards, J., dissenting) (noting his growing concern about the degree to which individual rights and liberties appear to be falling victim to the Government's 'War on Drugs'); Kenneth C. Betts, Fourth Amendment- Suspicionless Urinalyis Testing: A Constitutionally 'Reasonable' Weapon in the Nation's War on Drugs?, 80 J. Crim. L. & Criminology 1018 (1990); Thomas Regnier, The Loyal Foot Soldier: Can the Fourth Amendment Survive the Supreme Court's War on Drugs?, 72 UMKC L. REv. 631, 649-64 (2004); Stephen A. Saltzburg, Another Victim of Illegal Narcotics: The Fourth Amendment (As Illustrated by the Open Fields Doctrine), 48 U. Pitt. L. Rev. 1 (1986); Steven Wisotsky, Crackdown: The Emerging 'Drug Exception' to the Bill of Rights, 38 Hastings L.J. 889 (1987); Steven K. Bernstein, Note, Fourth Amendment-Using the Drug Courier Profile to Fight to War on Drugs, 80 J. Crim. L. & Criminology 996 (1990); Christian J. Rowley, Note, Florida v. Bostick: The Fourth Amendment-Another Casualty of the War on Drugs, 1992 Utah L. Rev. 601 (1992). 2. The discussion will not include civil rights cases, forfeiture cases, post-conviction cases, juvenile cases, or cases tried in military courts. Searches were made using the terms mari*uana and cannabis.

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