II. WARRANTLESS SEARCHES: SHIFT IN SUPREME COURT’S PHILOSOPHY (“ONLY A FEW NARROWLY DEFINED EXCEPTIONS”) HAS BEEN TRANSMOGRIFIED INTO “A WIDE RANGE OF DIVERSE …FLEXIBLE COMMON SENSE EXCEPTIONS”
While the Supreme Court has held:
“The most basic constitutional rule in this area is 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-defined exceptions [which] are jealously and carefully drawn’.” Coolidge v. New Hampshire, 403 U.S. 443, 454-55, 91 S.Ct. 2022, 29 L.Ed.2d 564, 576 (1971).
More recently it stated:
“Our cases hold that procedure by way of a warrant is preferred, although in a wide range of diverse situations we have recognized flexible, common sense exceptions to this requirement.” Texas v. Brown, 460 U.S. 730, 103 S.Ct. 1535, 1539, 75 L.Ed.2d 502 (1983).
Justice Brennan in dissent remarks that:
“[W]ords such as ‘practical’, ‘nontechnical’ and ‘common sense’ as used in the Court’s opinion, are but code words for an overly permissive attitude towards police practices in derogation of the rights secured by the Fourth Amendment. Everyone shares the Court’s concern over the horrors of drug trafficking, but under our Constitution only measures consistent with the Fourth Amendment may be employed by government to cure this evil. We must be ever mindful of Justice Stewart’s admonition in Coolidge, that ‘[i]n times of unrest, whether caused by crime or racial conflict or fear of internal subversion, this basic law and the values that it represent may appear unrealistic or ‘extravagant’ to some. But the values were those of the authors of our fundamental constitutional concepts’…. In the same vein, Glasser v. United States, 315 U.S. 60 (1942), warned that ‘[s]teps innocently taken may, one by one, lead to the irretrievable impairment of substantial liberties’. Id. at 86.” Illinois v. Gates, 462 U.S. at 290.
