Supreme Blunders

Virginia v. Moore

This is a case no whether evidence obtained in violation of states law is inadmissible in court as per the protections of the 4th Amendment.

“Under state law, the officers should have issued Moore a summons instead of arresting him. Driving on a suspended license, like some other misdemeanors, is not an arrestable offense except as to those who “fail or refuse to discontinue” the violation,and those whom the officer reasonably believes to be likely to disregard a summons, or likely to harm themselves or others. Va. Code Ann. §19.2–74 (Lexis 2004). The intermediate appellate court found none of these circumstances applicable, and Virginia did not appeal that determination. See 272 Va., at 720, n. 3, 636 S. E. 2d, at 396–397, n. 3. Virginia also permits arrest for driving on a suspended license in jurisdictions where “prior general approval has been granted by order of the general district court,” Va. Code Ann.§46.2–936; Virginia has never claimed such approval was in effect in the county where Moore was arrested.”

Here the court clearly shows that the arrest and search of the accused was in violation of State law. I in general how that the 4th Amendment requires a warrant in all searches. But even holding warrantless searches constitutional It is hard to see how evidence obtained through criminal activity, as any violation of the law or civil right must justly be held to, can be presented as evidence in court. To allow it as evidence is to render the protections of the 4th Amendment meaningless as they may be violated without penalty.

“Moore was charged with possessing cocaine with the intent to distribute it in violation of Virginia law. He filed a pretrial motion to suppress the evidence from the arrest search. Virginia law does not, as a general matter, require suppression of evidence obtained in violation of state law. See 45 Va. App., at 160–162, 609 S. E. 2d, at 82 (Annunziata, J., dissenting). Moore argued, however, that suppression was required by the Fourth Amendment . The trial court denied the motion, and after a bench trial found Moore guilty of the drug charge and sentenced him to a 5-year prison term, with one year and six months of the sentence suspended.”

I find the defendants logic here compelling. The absence of a Virginian law prohibiting evidence obtained in violation of state law is unnecessary as the application of the 4th Amendment to the States through the 14th Amendment should have that effect. Also the defendant bench trial is in my opinion a violation of his 5th Amendment guarantee of a trial by jury.

“The Fourth Amendment protects “against unreasonable searches and seizures” of (among other things) the person. In determining whether a search or seizure is unreasonable, we begin with history. We look to the statutes and common law of the founding era to determine the norms that the Fourth Amendment was meant to preserve. See Wyoming v. Houghton, 526 U. S. 295, 299 (1999) ; Wilson v. Arkansas, 514 U. S. 927, 931 (1995) .”

A look at history almost always signals an attempt to abridge the plain meaning of a statute or protection. On its face the 4th Amendment requires warrants for a lawful search nothing the court presents with contradict this.

In Wyoming v. Houghton it was held that the police my search the property of a second person as the result of a probable cause search of a vehicle and hold the possessor of the vehicle liable for the items found in possession of another. It contains this reasoning “The Court concluded that the Framers would have regarded such a search as reasonable in light of legislation enacted by Congress from 1789 through 1799–as well as subsequent legislation from the Founding era and beyond–that empowered customs officials to search any ship or vessel without a warrant if they had probable cause to believe that it contained goods subject to a duty.”. That there existed historical laws which may have violated the protection in question does not justify additional violation using some derived form some extrapolated justification for the initial violation. The court then expands the tiny crack created by allowing warrantless customs searches to allow any sort of warrantless search one might wish. This is an example of why even the most logical and minor of exceptions to any right or protection must be vigorously opposed because they act as gangrene dooming the limb and the body to death if not removed.

Wilson v. Arkansas deals with whether in the process of executing a warrant searchers must knock and announce their presence. I see no such requirement in the 4th Amendment. Unless an additional State law created such a requirement, and there is no evidence of that, I believe the the court ruled correctly. Though the state in engaged in criminal activity in acquiring the evidence that lead to the warrant I find this objectionable.

“We are aware of no historical indication that those who ratified the Fourth Amendment understood it as a redundant guarantee of whatever limits on search and seizure legislatures might have enacted.² The immediate object of the Fourth Amendment was to prohibit the general warrants and writs of assistance that English judges had employed against the colonists, Boyd v. United States, 116 U. S. 616, 624–627 (1886) ; Payton v. New York, 445 U. S. 573, 583–584 (1980) . That suggests, if anything, that founding-era citizens were skeptical of using the rules for search and seizure set by government actors as the index of reasonableness.”

The clear explanation of this is that during the founding era the 4th Amendment applied to only the Federal government. It only became a redundant guarantee with the adoption of the 14th Amendment significantly later thus the opinion of the founders about the effect of the 4th Amendment on the States is meaningless as it was not at that time intended to effect them.

The citation of Boyd v. U S is odd citation as it is a strong advocation that the compulsion to present evidence that would be used to convict one's self is a violation of the 4th and 5th Amendments. It also make a strong case against “The practice had obtained in the colonies of issuing writs of assistance to the revenue officers, empowering them, in their discretion, to search suspected places for smuggled goods, which James Otis pronounced 'the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law book;' since they placed 'the liberty of every man in the hands of every petty officer.'”. This practice is remarkably similar to the authority granted to law enforcement to conduct searches on the basis of probable cause.

Payton v. New York is also odd as it strongly states that arrests in a home must be authorized by warrant. It does focus on the sanctity of the house and the abuses of the English upon the colonists homes. But this does not lessen the protection of the individual himself nor his possessions but in fact buttresses those protection as they are not in anyway treated differently by the 4th Amendment. “It is thus perfectly clear that the evil the Amendment was designed to prevent was broader than the abuse of a general warrant. Unreasonable searches or seizures conducted without any warrant at all are condemned by the plain language of the first clause of the Amendment. Almost a century ago the Court stated in resounding terms that the principles reflected in the Amendment "reached farther than the concrete form" of the specific cases that gave it birth, and "apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life." Boyd v. United States, 116 U.S. 616, 630 .”

“Joseph Story, among others, saw the Fourth Amendment as “little more than the affirmance of a great constitutional doctrine of the common law,” 3 Commentaries on the Constitution of the United States §1895, p. 748 (1833), which Story defined in opposition to statutes, see Codification of the Common Lawin The Miscellaneous Writings of Joseph Story 698, 699, 701 (W. Story ed. 1852). No early case or commentary, to our knowledge, suggested the Amendment was intended to incorporate subsequently enacted statutes. None of the early Fourth Amendment cases that scholars have identified sought to base a constitutional claim on a violation of a state or federal statute concerning arrest. SeeDavies, Recovering the Original Fourth Amendment , 98 Mich. L. Rev. 547, 613–614 (1999);³ see also T. Taylor, Two Studies in Constitutional Interpretation44–45 (1969). ”

If by incorporate subsequently enacted statutes the court means does not allow exceptions created by later statutes I agree. If it means it was not meant to prevent the enactment of laws that on their face violate its protections I disagree in the strongest terms. It becomes nearly impossible to interpret any law if it does not mean what it says. Also the lack of challenges on some basis does not necessarily mean that such challenges could not have been made.

“ Of course such a claim would not have been available against state officers, since the Fourth Amendment was a restriction only upon federal power, see Barron ex rel. Tiernan v. Mayor of Baltimore, 7Pet. 243 (1833). But early Congresses tied the arrest authority of federal officers to state laws of arrest. See United States v. Di Re, 332 U. S. 581, 589 (1948) ; United States v. Watson, 423 U. S. 411, 420 (1976) . Moreover, even though several state constitutions also prohibited unreasonable searches and seizures, citizens who claimed officers had violated state restrictions on arrest did not claim that the violations also ran afoul of the state constitutions.⁴ The apparent absence of such litigation is particularly striking in light of the fact that searches incident to warrantless arrests (which is to say arrests in which the officer was not insulated from private suit) were, as one commentator has put it, “taken for granted” at the founding, Taylor, supra, at 45, as were warrantless arrests themselves, Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 764 (1994).

There are a number of possible explanations of why such constitutional claims were not raised. Davies, for example, argues that actions taken in violation of state law could not qualify as state action subject to Fourth Amendment constraints. 98 Mich. L. Rev.,at 660–663. Be that as it may, as Moore adduces neither case law nor commentaries to support his view that the Fourth Amendment was intended to incorporate statutes, this is “not a case in which the claimant can point to ‘a clear answer [that] existed in 1791 and has been generally adhered to by the traditions of our society ever since.’ ” Atwater v. Lago Vista, 532 U. S. 318, 345 (2001) (alteration in original).”

The cases cited here seem very late cases to be used to establish the practice of law more than 100 or 200 years prior. To be sure opinions on that subject as presented but those are only representative on the authors' perception of the historical practice rather than representative of the practice itself.

It is likely in referencing United States v Di Re deals this section is meant “We believe, however, that in absence of an applicable federal statute the law of the state where an arrest without warrant takes place determines its validity. By one of the earliest acts of Congress, the principle of which is still retained, the arrest by judicial process for a federal offense must be 'agreeably to the usual mode of process against offenders in such State.” I believe to hold this as support for the nonapplicability is of the 4th Amendment is very odd as the law presented here placed additional restriction that arrests must comply with state protections as well as federal protections. How a law which add the former to the later could be used to invalidate the later is inconceivable to me.

One of the questions addressed by the Di Re court was the warrant less search of cars this practice was authorized as a prohibition measure and justified as substantially different for searchs of people or homes. “Assuming, however, without deciding, that there was reasonable cause for searching the car, did it confer an incidental right to search Di Re? It is admitted by the Government that there is no authority to that effect, either in the statute or in precedent decision of this Court, but we are asked to extend the assumed right of car search to include the person of occupants because 'common sense demands that such rights exist in a case such as this where the contraband sought is a small article which could easily be concealed on the person.' ” This is a strong rebuttal of the general principle of warrantless searches. In fact other than the allowance for searches of vehicles for contraband, which I think is a violation, the court only seems to support warrantless arrests if the crime is witnessed by the officer and there is an reasonable fear that the criminal might escape. With current communication technologies this sort of exception is much less necessary as the officer need not travel to another location to acquire a warrant nor should the process take in significant time. Warrants could I believe be issued through telecommunication on the affidavit of the officer requesting the warrant possible by judges who where employed just for such a function.

Di Re ends with this fine quote: “We meet in this case, as in many, the appeal to necessity. It is said that if such arrests and searches cannot be made, law enforcement will be more difficult and uncertain. But the forefathers, after consulting the lessons of history, designed our Constitution to place obstacles in the way of a too permeating police surveillance, which they seemed to think was a greater danger to a free people than the escape of some criminals from punishment. Taking the law as it has been given to us, this arrest and search were beyond the lawful authority of those who executed them. The conviction based on evidence so obtained cannot stand.”

United States v. Watson presents a general claim that the requirement of warrants is not made by the 4th Amendment and supports this supposition with an appeal that common law practice of such warrantless arrests. It also defensed them on the basis that states had the authority to allow such arrests before the 14th Amendment and that the Federal government tried to co-opt that authority for its own agents. “Because the common law rule authorizing arrests without a warrant generally prevailed in the States, it is important for present purposes to note that, in 1792, Congress invested United States marshals and their deputies with 'the same powers in executing the laws of the United States as sheriffs and their deputies in the several states have by law in executing the laws of their respective states.' Act of May 2, 1792, c. 28, § 9, 1 Stat. 265. The Second Congress thus saw no inconsistency between the Fourth Amendment and legislation giving United States marshals the same power as local pace officers to arrest for a felony without a warrant. ^[n8] ”

In Atwater v. Lago Vista a major portion of the logic for the authority to preform warrantless searches is based on English law and shows no regard for the clear fact that the 4th Amendment was intend to protect against abuses found in the same law. “We begin with the state of pre-founding English common law and find that, even after making some allowance for variations in the common-law usage of the term “breach of the peace,”2 the “founding-era common-law rules” were not nearly as clear as Atwater claims; on the contrary, the common-law commentators (as well as the sparsely reported cases) reached divergent conclusions with respect to officers’ warrantless misdemeanor arrest power. Moreover, in the years leading up to American independence, Parliament repeatedly extended express warrantless arrest authority to cover misdemeanor-level offenses not amounting to or involving any violent breach of the peace.” This is the same assertion made in some involuntary labor cases that since the abuse predated the Amendment which prohibited it that the abuse should on that basis be acceptable as an exemption to the protection nominally offered.

“Our decisions counsel against changing this calculus when a State chooses to protect privacy beyond the level that the Fourth Amendment requires. We have treated additional protections exclusively as matters of state law. In Cooper v. California, 386 U. S. 58 (1967) , we reversed a state court that had held the search of a seized vehicle to be in violation of the Fourth Amendment because state law did not explicitly authorize the search. We concluded that whether state law authorized the search was irrelevant. States, we said, remained free “to impose higher standards on searches and seizures than required by the Federal Constitution,” id., at 62, but regardless of state rules, police could search a lawfully seized vehicle as a matter of federal constitutional law. ”

I believe this standard to be logically unsustainable and to be on its face immoral. It prohibits states from placing additional requirements on law enforcement or granting additional protections to its people because any laws to the effect maybe ignore without consequence. I believe strongly that any search that occurs either without legal authority or in violation of the law is unreasonable.

Cooper v California draws a false equivalency “Just as a search authorized by state law may be an unreasonable one under that amendment, so may a search not expressly authorized by state law be justified as a constitutionally reasonable one.”. While this construction is true in absence of a state law making then search illegal it does not account for the presence of such a law where a similar construction could be made 'Just as a search allowed by State law may be prohibited by the application of the 4th Amendment, so may a search allowed by the 4th Amendment may be prohibited by the application of State law.' A search should only be considered reasonable if it complies with both the 4th Amendment's inherent requirements and the requirements of all other applicable laws.

“In California v. Greenwood, 486 U. S. 35 (1988) , weheld that search of an individual’s garbage forbidden by California’s Constitution was not forbidden by the Fourth Amendment . “[W]hether or not a search is reasonable within the meaning of the Fourth Amendment ,” we said, has never “depend[ed] on the law of the particular State in which the search occurs.” Id., at 43. While “[i]ndividual States may surely construe their own constitutions as imposing more stringent constraints on police conduct than does the Federal Constitution,” ibid., state law did not alter the content of the Fourth Amendment .”

I do not believe additional laws alter the content of the the 4th Amendment but rather that the 4th Amendment contains the requirement that any search or arrest must comply with all laws and be conducted with with proper legal authority.

This logic from Cali v Greenwood is questionable “Here, we conclude that respondents exposed their garbage to the public sufficiently to defeat their claim to Fourth Amendment protection. It is common knowledge that plastic garbage bags left on or at the side of a public street are readily accessible to animals, ^[n2] children, scavengers, ^[n3] snoops, ^[n4] and other members of the public. See Krivda, 5 Cal.3d at 367, 486 P.2d at 1269. Moreover, respondents placed their refuse at the curb for the express purpose of conveying it to a third party, the trash collector, who might himself have sorted through respondents' trash or permitted others, such as the police, to do so.” This construction has two flaws; first it allows the government to justify its actions based on the bad actions of others; second presents a a legitimate justification for government inspection an objects transmission between two parties. The first flaw can be expanded to a myriad of other actions such as trespassing or even a search without cause on the basis that nongovernment actors might preform similar actions. The second would allow any property or papers to be open to government inspection despite their remaining at all time private property and nominally protected for such searches. There are available remedies which law enforcement might use to inspect property given from one individual to another. They may ask the second individual for information or to inspect the material or they may if possessing sufficient evidence to do so subpoena the material or testimony of either party.

“We have applied the same principle in the seizure context. Whren v. United States, 517 U. S. 806 (1996) , held that police officers had acted reasonably in stopping a car, even though their action violated regulations limiting the authority of plainclothes officers in unmarked vehicles. We thought it obvious that the Fourth Amendment ’s meaning did not change with local law enforcement practices—even practices set by rule. While those practices “vary from place to place and from time to time,” Fourth Amendment protections are not “so variable” and cannot “be made to turn upon such trivialities.” Id., at 815. ”

It is appalling that the local and State laws should be held to be trivialities. Interestingly the author of this opinion wrote in Whern v US that “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." Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a "seizure" of "persons" within the meaning of this provision. ” This contradicts the logic allowing warrantless searches of vehicles incident to an arrest or in other circumstances where such a search would not be acceptable as search of a persons home. It is upon that logic as well as the ability of the Federal governments ability to avail itself of the same privilege as States possessed before the 14th Amendment to act without the restraint of the 4th Amendment which the current allowance for warrantless searches and arrests of any kind is based.

“ We are convinced that the approach of our prior cases is correct, because an arrest based on probable cause serves interests that have long been seen as sufficient to justify the seizure. Whren, supra, at 817; Atwater, supra, at 354. Arrest ensures that a suspect appears to answer charges and does not continue a crime, and it safeguards evidence and enables officers to conduct an in-custody investigation. See W. LaFave, Arrest: The Decision to Take a Suspect into Custody 177–202 (1965). ”

While these are good arguments for the social good of warrantless arrests and searches that good on its own does not justify such arrests and searches when the 4th Amendment requires them.

“Moore argues that a State has no interest in arrest when it has a policy against arresting for certain crimes. That is not so, because arrest will still ensure a suspect’s appearance at trial, prevent him from continuing his offense, and enable officers to investigate the incident more thoroughly. State arrest restrictions are more accurately characterized as showing that the State values its interests in forgoing arrests more highly than its interests in making them, see, e.g., Dept. of Justice, National Institute of Justice, D. Whitcomb, B. Lewin, & M. Levine, Issues and Practices: Citation Release 17 (Mar. 1984) (describing cost savings as a principal benefit of citation-release ordinances); or as showing that the State places a higher premium on privacy than the Fourth Amendment requires. A State is free to prefer one search-and-seizure policy among the range of constitutionally permissible options, but its choice of a more restrictive option does not render the less restrictive ones unreasonable, and hence unconstitutional. ”

I believe that the 4th Amendment requires all activities associated with a search or arrests to be legal and not to be in contradiction of any law. I also believe that the exemptions allowed to 4th Amendment are based on practices originating outside the jurisdiction of the Amendment and a clearly not consistent with the wording of the Amendment.

“If we concluded otherwise, we would often frustrate rather than further state policy. Virginia chooses to protect individual privacy and dignity more than the Fourth Amendment requires, but it also chooses not to attach to violations of its arrest rules the potent remedies that federal courts have applied to Fourth Amendment violations. Virginia does not, for example, ordinarily exclude from criminal trials evidence obtained in violation of its statutes. See 45 Va. App., at 161,609 S. E. 2d, at 82 (Annunziata, J., dissenting) (citing Janis v. Commonwealth, 22 Va. App. 646, 651, 472 S. E. 2d 649, 652 (1996)). Moore would allow Virginia to accord enhanced protection against arrest only on pain of accompanying that protection with federal remedies for Fourth Amendment violations, which often include the exclusionary rule. States unwilling to lose control over the remedy would have to abandon restrictions on arrest altogether. This is an odd consequence of a provision designed to protect against searches and seizures. ”

This is not a bad argument, that it should be dependent on the States to provide for the consequences of violating their own laws. I think in this case the danger avoided is lesser than the danger allowed.

“In Atwater, we acknowledged that nuanced judgments about the need for warrantless arrest were desirable, but we nonetheless declined to limit to felonies and disturbances of the peace the Fourth Amendment rule allowing arrest based on probable cause to believe a law has been broken in the presence of the arresting officer. Id., at 346–347. The rule extends even to minor misdemeanors, we concluded, because of the need for a bright-line constitutional standard. If the constitutionality of arrest for minor offenses turned in part on inquiries as to risk of flight and danger of repetition, officers might be deterred from making legitimate arrests. Id., at 351. We found little to justify this cost, because there was no “epidemic of unnecessary minor-offense arrests,”and hence “a dearth of horribles demanding redress.” Id., at 353. ”

I think that the arrest of persons who committed crimes which where witnessed by the arresting actor are good and socially useful. I do not however see them as authorized by the 4th Amendment this is likely because such an arrest is primarily a part of local law enforcement which was not limited by the amendment when it was adopted. At the present moment in time the need is being lessened by the ability to acquire warrants without allowing the perpetrator to escape or commit other crimes.

“Incorporating state-law arrest limitations into the Constitution would produce a constitutional regime no less vague and unpredictable than the one we rejected in Atwater. The constitutional standard would be only as easy to apply as the underlying state law, and state law can be complicated indeed. The Virginia statute in this case, for example, calls on law enforcement officers to weigh just the sort of case-specific factors that Atwater said would deter legitimate arrests if made part of the constitutional inquiry. It would authorize arrest if a misdemeanor suspect fails or refuses to discontinue the unlawful act, or if the officer believes the suspect to be likely to disregard a summons. Va. Code Ann. §19.2–74.A.1.”

The courts aversion to questions requiring the judgment of others seems clear. I do not feel that this is acceptable. I believe that judges and later juries would be perfectly able to second guess these decisions fairly and that what the difficulties the court presents exist mainly in theory rather that practice.

“Finally, linking Fourth Amendment protections to state law would cause them to “vary from place to place and from time to time,” Whren, 517 U. S., at 815. Even at the same place and time, the Fourth Amendment ’s protections might vary if federal officers were not subject to the same statutory constraints as state officers. In Elkins v. United States, 364 U. S. 206, 210–212 (1960) , we noted the practical difficulties posed by the “silver-platter doctrine,” which had imposed more stringent limitations on federal officers than on state police acting independent of them. It would be strange to construe a constitutional provision that did not apply to the States at all when it was adopted to now restrict state officers more than federal officers, solely because the States have passed search-and-seizure laws that are the prerogative of independent sovereigns. ”

Many criminal and civil standards vary for place to place and for time to time. It prevent this would be to adopt a unified legal code which would have to remain unchangeable that would require us to abandon our present system of government. I do not see why Federal agents should be subject to State laws written solely to control the state or local law enforcement but at the same time I don’t see why the shouldn't be subject to State laws which act as general limitations or when acting in concert with local law enforcement.

In Elkins there is this agreeable passage “If resolution of the issue were to be dictated solely by principles of logic, it is clear what our decision would have to be. For surely no distinction can logically be drawn between evidence obtained in violation of the Fourth Amendment and that obtained in violation of the Fourteenth. The Constitution is flouted equally in either case. To the victim it matters not whether his constitutional right has been invaded by a federal agent or by a state officer. 7 It would be a curiously ambivalent rule that would require the courts of the United States to differentiate between unconstitutionally seized evidence upon so arbitrary a basis. Such a distinction indeed would appear to reflect an indefensibly selective evaluation of the provisions of the Constitution. Moreover, it would seem logically impossible to justify a policy that would bar from a federal trial what state officers had obtained in violation of a federal statute, yet would admit that which they had seized in violation of the Constitution itself. Cf. Benanti v. United States, 355 U.S. 96 . [364 U.S. 206, 216]”

If States should wish to restrict their officers and agents more that the minimum required by the 4th Amendment that is their right as it is not their right to lessen the restrictions below that minimum. It should be noted that the Federal government could, within its powers, enact similar restrictions which would create disparity of the same kind.

“The Virginia Supreme Court may have concluded that Knowles required the exclusion of evidence seized from Moore because, under state law, the officers who arrested Moore should have issued him a citation instead. This argument might have force if the Constitution forbade Moore’s arrest, because we have sometimes excluded evidence obtained through unconstitutional methods in order to deter constitutional violations. See Wong Sun v. United States, 371 U. S. 471, 484–485, 488 (1963) . But the arrest rules that the officers violated were those of state law alone, and as we have just concluded, it is not the province of the Fourth Amendment to enforce state law. That Amendment does not require the exclusion of evidence obtained from a constitutionally permissible arrest.”

If the assertion that the effect and limitations of State law on searches and arrests act in a fashion unconnected to the 4th amendment then the authority to rule on their effect rests with the State courts not the Federal or Supreme courts. However the court here reverses the judgment of the Virginia Supreme court. Perhaps it leaves a small area for the State courts to rule on just the State law alone but but as the 4thamendment embodies a core judicial principle which such a ruling would have to consider this courts ruling has the effect of nullifying State law and the protection of the Citizens of the United State.

“We reaffirm against a novel challenge what we have signaled for more than half a century. When officers have probable cause to believe that a person has committed a crime in their presence, the Fourth Amendment permits them to make an arrest, and to search the suspect in order to safeguard evidence and ensure their own safety.”

I believe the legal theory justifying this position is essentially based no the nonapplicablity of the 4th Amendment on the States and it lack of effect on practices before its adoption. This rational is inconsistent with its application to all levels of government and with the necessities of modern life. Since the incorporation of the 4th Amendment is as recent as 1949 and no later case has considered the base issue on its own merits without selectively citing and interpreting earlier cases I think that resting on precedence is poor conclusion.