Are We Too Lax in Allowing Seizures?

Lauryn P. Gouldin (Syracuse University College of Law) has posted Redefining Reasonable Seizures on SSRN.

Here is the abstract:

The government’s power to seize individuals who are suspected of crimes — by arresting, stopping, or otherwise detaining them — has expanded significantly in the twenty-first century. The Supreme Court’s gradual redefinition of what constitutes a reasonable Fourth Amendment seizure has occurred without meaningful evaluation of whether the government needs additional seizure or detention power.

There are key differences between search and seizure doctrine that make the development of a general and unifying explanatory theory of modern Fourth Amendment search and seizure trends difficult, if not impossible. These differences suggest that a focused, independent analysis of Fourth Amendment seizure developments (uncoupled from search- and privacy-focused analyses) is overdue.

This Article documents the expansion of seizure power across the spectrum over the last fifteen years. These cases reveal missed opportunities to provide greater protection to individuals, and they identify spaces where new technologies might justify revisiting settled rules. In addition, these decisions reveal how the Court’s reluctance to probe government motivations and to consider less intrusive alternatives undermines its efforts to balance individual rights against government interests.

The Article then outlines the individual rights and collective interests that are implicated in seizure cases. Finally, the Article analyzes the problems presented by the Court’s approach to calculating necessity in seizure cases. Proposals for reform are focused on four areas: requiring precise statements of government needs in seizure cases; looking to existing laws, guidelines, and police norms to support (or refute) necessity claims; requiring greater proof of a need to seize in cases involving more minor offenses; and considering alternative approaches, technological changes, and long-term costs in calculating necessity.

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