Generally, reasonableness is a legal standard used to judge the appropriateness of an individual’s action or inaction in a particular set of circumstances. Judges or juries typically determine reasonableness by balancing a series of situation-specific factors. These reasonableness factors can vary, but usually include the characteristics of the parties involved and the context in which the act or omission occurred.
As many scholars note, legal standards differ from legal rules. Legal rules involve relatively straightforward analyses that are typically highly predictable and often definite. Conversely, a legal standard, such as the reasonableness standard, is most often a complex analysis that accounts for circumstance and varying factual scenarios. For this reason, legal standards can be unpredictable and can produce a variety of outcomes.
In the American criminal justice system, the reasonableness standard dictates outcomes in a host of situations. Most often, the reasonableness analysis is employed in the context of the Fourth Amendment. As the U.S. Supreme Court has stated, “the touchstone of the Fourth Amendment is reasonableness.” But constitutional law scholars disagree about the role of reasonableness in Fourth Amendment jurisprudence. Some claim that the text of the Fourth Amendment requires—except in a few exceptional circumstances—search warrants in all instances and that reasonableness analyses improperly subvert this requirement. Others argue that the Fourth Amendment does not categorically require search warrants, but merely expresses the framers’ preference for searches supported by warrants. Today, this debate still rages and the Supreme Court has done little to clarify the issue.
Legal Rules Versus Legal Standards
Some commentators suggest that legal rules and legal standards differ only in the complexity of their respective analyses—legal rules requiring simple analyses and legal standards requiring complex evaluations. Yet, as legal scholar Lewis Kaplow has noted, legal rules and legal standards vary such that there exist complex legal rules and simple legal standards. Kaplow defines legal rules as “legal commands that seek to determine an outcome on a particular fact situation ex ante.” One example of a legal rule is a posted speed limit. Conversely, legal standards “seek to determine an outcome on a particular situation ex post.” Legal standards include malleable tests involving the weighing of factors.
The Fourth Amendment and the Reasonableness Standard
The Fourth Amendment to the U.S. Constitution states “The 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.” Some commentators refer to the first clause of the Fourth Amendment as the “reasonableness clause” and the second as the “warrants clause.” Debate about the interaction of the two clauses is at the heart of the reasonableness standard and its evolution.
Proponents of search warrants argue that the clauses are intertwined and that the warrant clause defines the reasonableness clause and that warrantless searches are per se unreasonable. Others argue that the clauses are independent, and that so long as a search is reasonable, it is valid. Those taking this position contend that the warrants clause merely defines when a warrant is invalid and a search pursuant to that warrant unreasonable. The reasonableness standard of the Fourth Amendment grew from this debate.
Establishing the Reasonableness Standard
In the early years of Fourth Amendment jurisprudence, the U.S. Supreme Court customarily held that a search must be supported by a search warrant, or fall within one of a few well-delineated exceptions to the warrant requirement. In the 1940s and 1950s, however, the court seemed to suggest that the warrant requirement had become merely a warrant preference and routinely authorized warrantless searches that did not fit into an established warrant exception. Yet, in 1967, in Katz v. United States, the court reaffirmed the warrant requirement.
Writing for the court, Justice Potter Stewart explained: “‘Over and again this court has emphasized that the mandate of the [Fourth] Amendment requires adherence to judicial processes,’ and that searches conducted outside the judicial process, without prior approval by judge or magistrate, are per se unreasonable under the Fourth Amendment—subject only to a few specifically established and well-delineated exceptions.” Following Katz, however, the court routinely carved out exceptions to its stated warrant requirement, ultimately stating explicitly that reasonableness could supplant probable cause as justification for warrantless searches in a host of circumstances.
Destroying the Monolith
Some constitutional law scholars once described the Fourth Amendment as a monolith. The source of this description came from the assumption that all searches required a showing of probable cause or individualized suspicion that criminal evidence will be found in the location subject to search. Yet, as law professor Joshua Dressler notes, in 1967, the Supreme Court took the first step toward establishing the reasonableness standard and destroying the monolith.
In Camara v. Municipal Court, a housing inspector sought to conduct a routine search of a tenant’s apartment to determine if that apartment met municipal housing code regulations. The inspector did not suspect that the tenant was engaging in criminal activity and had no reason to believe that municipal housing code regulations were being violated. Thus, the housing inspector did not have probable cause to conduct a warrantless administrative search of the tenant’s apartment. Ultimately, the Supreme Court held that the search was valid and established a new, generalized conceptualization of probable cause. What resulted was one version of the reasonableness standard.
The court noted that reasonableness—in the context of administrative searches—requires weighing public interests and private interests by balancing the need to search against the invasion that the search entails. In Camara, the court found that housing inspector searches were customary and that requiring a warrant would inhibit an inspector’s ability to ascertain code violations not readily visible from outside of the home. Conversely, the court found that the search amounted to a relatively limited invasion of the tenant’s privacy because the search was not personal in nature or aimed at the discovery of evidence of crime. Ultimately, the court held that while probable cause did not exist, the search was nonetheless reasonable.
Though Camara established the reasonableness standard in the realm of administrative searches, redefining the requirements to establish probable cause, the case did not stand for the proposition that reasonableness supports warrantless searches in the context of criminal investigations. In 1968, however, the Supreme Court addressed the issue in Terry v. Ohio. In that case, a police officer noticed three men milling in front of a storefront. Fearful that these men were preparing to commit a robbery, the officer approached the men and asked them to identify themselves. When they mumbled their responses, suggesting that they did not want to provide identification, the officer physically detained one man and patted him down on a public sidewalk. During this pat down, the officer felt a gun in the man’s pocket, removed the weapon, and placed the man under arrest for carrying a concealed firearm. The issue in Terry was whether the officer’s search was reasonable, even though the officer lacked probable cause—in the traditional sense—to detain or search the man he suspected of nefarious activity.
In Terry, the Supreme Court held that the search was permissible because it was reasonable, stating, “our inquiry is a dual one—whether the officer’s action was justified at its inception, and whether it was reasonably related in scope to the circumstances which justified the interference in the first place.” The court then weighed public and private interests, noting that crime prevention and the protection of police officers outweighed the intrusion at issue. The court went on to explain that if an officer has a reasonable suspicion that a person is armed and presents a danger, that officer is constitutionally permitted to conduct a search for weapons. The court emphasized, though, that in such circumstances, the officer “must be able to point to specific and articulable facts which, taken together with rational inferences from those facts, reasonably warrant the intrusion.” Terry, therefore, stands for the proposition that—under certain circumstances—a warrantless search is reasonable and constitutional even when it occurs in the context of a criminal investigation.
Further Application of the Reasonableness Standard
The reasonableness standard is commonplace in Fourth Amendment jurisprudence. Many circumstances give rise to reasonable warrantless searches. While many of these searches are often predicated on reasonable suspicion of criminal wrongdoing, in many instances they are supported by no suspicion at all. Precedent has established that a search is lawful—even absent suspicion of criminal wrongdoing—when the subject of the search is a parolee, crosses an international border, arrives at a border checkpoint, or is potentially involved in activities related to national security.
- Davies, T. Y. “The Supreme Court Giveth and the Supreme Court Taketh Away: The Century of Fourth Amendment ‘Search and Seizure’ Doctrine.” Journal of Criminal Law and Criminology, v.100 (2010).
- Dressler, J. and Alan C. Michaels. Understanding Criminal Procedure. Volume 1. Investigation. 6th ed. New Providence, NJ: LexisNexis, 2013.
- Kaplow, L. “Rules Versus Standards: An Economic Analysis.” Duke Law Journal, v.42 (1992).
- Muchmore, A. I. “Jurisdictional Standards (and Rules).” Vanderbilt Journal of Transnational Law, v.46 (2012).
- Tomkovicz, J. J. “William Rehnquist’s Fourth Amendment.” Mississippi Law Journal, v.82 (2013).
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