Case Western Reserve Law Review
Although there is no recipe for defining Fourth Amendment reasonableness, the Supreme Court produces its most anomalous Fourth Amendment outcomes when it decides "mixed" questions of reasonableness, assessing issues that turn on how ordinary, prudent citizens think and behave. The Court treats these mixed issues, combinations of fact and law, as if they raise purely legal questions. But mixed issues are more complex and require someone to determine historical facts, apply those facts to principles of Fourth Amendment law, and consider the totality of the circumstances, including taking into account community and cultural influences. The Supreme Court will take its first step toward returning reasonableness to its Fourth Amendment jurisprudence by expressly, accurately, and consistently dividing "mixed issues" into subgroups and then assigning whole subgroups to judge or jury, depending on who can best decide the whole class of issues in a way that protects the interests represented by the Fourth Amendment.
Dividing mixed questions into identifiable sub-categories, a government subset and a citizen subset, is the key to returning reason to the Court's Fourth Amendment jurisprudence. Until now, the Court has reserved all mixed issues for itself, subjecting them to a de novo review on appeal. At a minimum, the Court should distinguish between questions that are strongly tied to law enforcement policies and procedures or dependent on the professional expertise of law enforcement agents and, in contrast, questions that require an evaluation of how a prudent and sensible suspect or citizen acts and thinks when he or she is confronted by the police.
Melanie D. Wilson, The Return of Reasonableness: Saving the Fourth Amendment from the Supreme Court, 59 Case W. Res. L. Rev. 1 (2008).