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Probable Cause, Reasonableness, and the Importance of Fourth Amendment History: A Response to Professor Arcila

2008; University of Pennsylvania Law School; Volume: 10; Issue: 5 Linguagem: Inglês

1521-2823

David E. Steinberg,

Legal Systems and Judicial Processes

With his article, In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause,' Professor Fabio Arcila, Jr. has contributed a valuable work that significantly enhances our understanding of Fourth Amendment history. In the relatively few articles that go beyond a superficial glance at Fourth Amendment history, authors tend to focus on broad conclusions, attempting to derive some general theory of the original understanding of the Amendment. This big picture focus is certainly true of my own work on Fourth Amendment history, such as my article published in this Journal. Professor Arcila prudently focuses on a more narrow question: What did the probable cause requirement mean in the Framing era? Even more specifically, how did early American judges view their role in the warrant application process? As Professor Arcila puts it, did 'Judges act as vigilant sentries, aggressively inquiring into the merits