The Elephant in the Seventh Circuit: AModified Approach to the MinimalSuspicion Standard

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause . . . .1I. IntroductionFew portions of the Constitution have spawned the amount of litigation or scholarship - as the Fourth Amendment. Suppression hearings are a staple in criminal trials, involving the Fourth Amendment in most prosecutions.2 Because of the prevalence of Fourth Amendment litigation, developing a clear understanding of the Amendment is necessary.The Fourth Amendment consists of two clauses, the "Reasonableness Clause" and the "Warrant Clause." 3 It is this division that has caused much confusion in the Supreme Court's jurisprudence. If one reads the two clauses independently, the Amendment protects citizens against only "unreasonable searches and seizures" and provides no guidance in determining reasonableness.4 Thus, the courts would determine, on a case-by-case basis, what constitutes a reasonable search or seizure.5 Under this reading, probable cause would be relevant only in determining the validity of warrants.On the other hand, if one reads the two clauses in conjunction, probable cause becomes a cornerstone of a search's reasonableness. Absent probable cause, a search or seizure would be presumptively unreasonable; indeed, under a strict conjunctive reading, the Amendment would require warrants absent special circumstances.6 The Supreme Court followed this latter approach until the middle of the twentieth century.7 As the century progressed, however, the Warrant Clause's dominance fell away, and the Court read the two clauses as being distinct when analyzing searches and seizures in most circumstances.8Of particular interest to this Note is the relevance of the Reasonableness Clause in street encounters between police and citizens. Although the Court does not require probable cause for a street stop or search,9 the Justices have never sanctioned an involuntary street search or seizure absent "reasonable suspicion" of the person's involvement in criminal activity.10 Indeed, subsequent to Terry v. Ohio,11 the circuit courts recognized tiiree levels of police-citizen encounters: a voluntary meeting, a Terry stop, and an arrest.12 Each category has its own distinct level of particularized suspicion necessary to validate the police action involved.13 This framework has been stable and generally unquestioned by die lower courts; however, United States v. Burton14 changed this.In an opinion by Judge Posner, the Burton court upheld an involuntary street seizure despite the absence of reasonable suspicion.15 Given that the police seized Mr. Burton's car before Burton completed a transaction with another man, Judge Posner concluded that the seizure was, at most, minimally intrusive.16 Because the stop was only minimally intrusive, only "minimal suspicion" was necessary to justify it.17Grave consequences follow from the court's adoption of a standard lower than reasonable suspicion. Such a standard could open the door for police stops based entirely upon inarticulate hunches, a position the Supreme Court squarely rejected in Terry.19 Adding further difficulty, many of these hunches could have invidious bases, such as race.Of course, there are advantages to Judge Posner's approach. To start, such a standard would allow the police to preemptively interject themselves into suspicious situations. Furthermore, due to the limited invasiveness of "minimally intrusive" searches, there may not be any significant infringement on individual rights.This Note explores the competing aspects of the minimal suspicion standard. It concludes that the problems with the minimal suspicion standard outweigh its usefulness in the context of ordinary police-citizen encounters. Yet, allowing the police to investigate and stop individuals based on a minimal level of suspicion could be appropriate when there are extraordinary, uncommon governmental interests at stake. …