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... supports Professor William Snyder's sections of National Security Law, Counterterrorism Law, and Prosecuting Terrorists at the Syracuse University College of Law.

Does the Fourth Amendment Permit House-to-House Searches?

Apr 21st, 2013 Terrorism

In light of the recent events in Boston, Orin Kerr posed the following question on The Volokh Conspiracy: “Assume the police enter a home without consent searching for Dzhokhar Tsarnaev; does the entry violate the Fourth Amendment?” Kerr suggests that it would depend on the outcome of a fact-specific analysis of the entry’s “reasonableness.” This determination, he explains, requires balancing the government’s interest in searching and the “scope of the privacy invasion.”

 The constitutional question would seem to depend on whether the searches are reasonably limited in scope (such as limited to a specific geographic area), the dangerousness of the suspect (here, very high), and the strength of the government’s case that the suspect may be in the area and cannot be caught another way.

 

Kerr notes there is very little case law on this general issue and that which is relevant isn’t very fact-specific. (He references City of Indianapolis v. Edmond, 531 U.S. 32, 32 (2000) and United States v. Paetsch, 2012 WL 5213011 at *1 (D.Colo)).

In closing, Kerr emphasizes how the standing requirement creates obstacles to adjudicating such cases:

 The suspect won’t have Fourth Amendment standing to bring a suit or a motion to suppress to challenge a search of someone else’s house in which he was hiding. . . . As a result, only the legitimate residents could bring such actions in a civil case. And if they did bring such suits, qualified immunity would bar recovery unless the violation was clearly established — which is unlikely here given the novelty of the facts.

 

You can read the full post by Orin Kerr here.

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