tag:blogger.com,1999:blog-5354567765897135804.post1752443393277319118..comments2023-03-16T23:35:17.345-04:00Comments on Forensic Science, Statistics & the Law: Maryland v. King No. 2: Was There a Search?DH Kayehttp://www.blogger.com/profile/09329862957840849989noreply@blogger.comBlogger1125tag:blogger.com,1999:blog-5354567765897135804.post-43306964168398097992013-06-07T23:49:49.117-04:002013-06-07T23:49:49.117-04:00"Coherent Fourth Amendment Doctrine"?
I..."Coherent Fourth Amendment Doctrine"?<br /><br />In King, Kennedy authors the majority opinion adopting "totality balancing" to determine the ultimate question of reasonableness.<br /><br />But, in McNeely, Kennedy joins the majority in an opinion that adopts the principle that all warrantless searches are unreasonable unless they fall within a well-recognized exception -- an exception such as exigent circumstances that, by definition and practice, involves totality balancing. <br /><br />Kennedy does, however, write a concurring opinion in McNeely suggesting that he only voted with the majority because of the narrow manner in which the issue came to the Court: Are all warrantless blood draws in DUI cases per se reasonable, because blood alcohol levels are presumably dissipating from the moment of arrest.<br /><br />So my question, Prof. Kaye: Do you believe Kennedy is in the totality-of-the circumstances balancing camp, or do you think he still adheres to the "traditional" rule that warrantless searches are per se unreasonable absent a recognized exception?<br /><br />This is a very important question regarding the future of Fourth Amendment doctrine because Kennedy is (like in many other constitutional areas) the key swing vote. (NOTE: The only difference in the King and McNeely voting blocks was Kennedy. Scalia, Sotomayor, Kagan & Ginsburg appear to hold the "traditional" view. While Roberts, Alito, Breyer & Thomas seem to accept totality balancing.)<br /><br />Personally, I think Kennedy also believes that totality balancing is the proper method of ascertaining if a search or seizure is reasonable. But his somewhat cryptic concurrence in McNeely is causing second thoughts. (I should add that Kennedy also seems to adopt totality balancing in the Bailey "seizure" case decided earlier this term.)<br /><br />Your thoughts on this issue would be greatly appreciated. pvineman1https://www.blogger.com/profile/08122071684038276970noreply@blogger.com