Suspicion is perhaps the core foundational principle through which we seek to protect and vindicate Fourth Amendment values. Fourth Amendment law could not be clearer, and repeats over and over again, that it proceeds from a presumptive suspicion requirement. We are all so familiar with that proposition that we can easily incant it: a governmental search is presumptively unconstitutional unless supported by some threshold of prior suspicion. Though suspicion is thus a hallmark of Fourth Amendment black letter law, I come to critique it. I critique it because the presumptive suspicion requirement's provenance is historically questionable, both as a matter of the common law and in light of federal statutory search law during the Framers' era. Even apart from the historical case, I critique it because it is demonstrably wrong in terms of contemporary constitutionalism. Fourth Amendment jurisprudence is not honest about suspicion's role in protecting Fourth Amendment values, and our failure to look critically at suspicion has prevented us from doing a better job of protecting those values. It can no longer do the heavy lifting we have asked it to do, and it is time to look elsewhere to develop alternative methods for protecting Fourth Amendment interests.
43 Tex. Tech. L. Rev. 237 (2010)
43 Tex. Tech. L. Rev. 237