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31 Am. U. L. Rev. 85 (1981-1982)
Considering the Two-Tier Model of the Fourth Amendment

handle is hein.journals/aulr31 and id is 103 raw text is: COMMENTS
CONSIDERING THE TWO-TIER MODEL
OF THE FOURTH AMENDMENT
INTRODUCTION
The essential purpose of the proscriptions in the fourth amendment,
is to impose reasonable limitations upon the exercise of official discre-
tion.2 These procedural safeguards are indispensable to the mainte-
nance of our free society.3 The governmental interest in enforcing the
law and in apprehending criminals, however legitimate that interest
may be, cannot be permitted peremptorily to override the interests of
1. The fourth amendment guarantees:
[t]he 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, supported by Oath or affirmation, and particularly describing the
place to be searched, and the persons or things to be seized.
U.S. CONsT. amend. IV.
The fourth amendment originally was not applied to state officials' behavior, see Smith v. Mary-
land, 59 U.S. (18 How.) 59 (1855), because the first ten amendments were designed only as limita-
tions upon the federal government. See Barron v. Mayor of Baltimore, 32 U.S. (7 Pet.) 243 (1833).
In Wolf v. Colorado, 338 U.S. 25 (1949), however, the Supreme Court determined that the fourth
amendment applies to the states through the due process clause of the fourteenth amendment. Id
at 27-28. The Court in Wof expressly declined to hold that states were constitutionally compelled
to institute the exclusionary rule as the remedy for fourth amendment violations. Id at 31-33. It
was not until Mapp v. Ohio, 367 U.S. 643 (1961), that the exclusionary rule was applied to the
states. See note 18 injfra.
2. Brown v. Texas, 443 U.S. 47,50 (1979) (power to stop individual and require a showing of
identification limited); Delaware v. Prouse, 440 U.S. 648, 653-54 (1979) (spot check of automobiles
limited); United States v. Di Re, 332 U.S. 581, 594-95 (1948) (probable cause to arrest limited in
that it cannot be inferred from arrestee's submissiveness).
Professor Anthony Amsterdam has described the fourth amendment as quintessentially a regu-
lation of the police. . .  Amsterdam, Perspectives On The Fourth.Amendment, 58 MINN. L. REv. 349,
371 (1974).
3. See Almeida-Sanchez v. United States, 413 U.S. 266, 274 (1973) (quoting Brinegar v.
United States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting)).
[Fourth amendment rights] are not mere second-class rights but belong in the catalog of
indispensable freedoms. Among deprivations of rights, none is so effective in cowing a
population, crushing the spirit of the individual and putting terror in every heart. Uncon-
trolled search and seizure is one of the first and most effective weapons in the arsenal of
every arbitrary government.
Id See also Wolf v. Colorado, 338 U.S. 25, 27 (1949) (The security of one's privacy against arbi-
trary intrusion by the police. . . is basic to a free society.); Gouled v. United States, 255 U.S. 298,
304 (1921) ([Fourth and fifth amendment rights] are to be regarded as of the very essence of
constitutional liberty.).

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