a6 - Terry and Fourth Amendment First Principles


Akhil Reed Amar

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St. John's Law Review


Author argues that there is a “good” and “bad” Terry. The good Terry embraced a broad definition of "searches" and "seizures," enabling the Fourth Amendment to apply to myriad ways in which government might intrude upon citizens' persons, houses, papers, and effects. The good Terry also did not insist that all such broadly defined searches and seizures be preceded by warrants. Third, and more dramatic still, the good Terry did not insist that all warrantless intrusions be justified by probable cause. The stunning logical lesson of the good Terry is thus that a warrantless search or seizure may sometimes lawfully occur in a situation where a warrant could not issue (because probable cause is lacking). Fourth, in place of the misguided notions that every search or seizure always requires a warrant, and always requires probable cause, the good Terry insisted that the Fourth Amendment means what it says and says what it means: All searches and seizures must be reasonable. Reasonableness-not the warrant, not probable cause - thus emerged as the central Fourth Amendment mandate and touchstone.