This article will demonstrate the Supreme Court's inability to develop an objective methodology to derive and apply fourth amendment principles under either the traditional probable cause approach or the balancing approach. A detailed analysis of traditional probable cause will reveal that its premises are ultimately subjectively derived? This examination will also show that returning to traditional probable cause would necessitate resurrecting the unrealistic premise that an individual's privacy interest is always outweighed by the government's interest in searching if the authorities meet a static standard of probable cause. The article will then discuss the advent of the balancing approach and the new set of fourth amendment premises adopted by the Court. In addition, a consideration of these new assumptions about the nature of fourth amendment protection and how they have affected the traditional probable cause requirements will highlight the differences between the two approaches. Finally, the article will focus on the inadequacies of the "sliding scale" methodology the Court has used under the balancing approach and suggest several different theories of the fourth amendment's substance.
Ronald J. Bacigal, The Fourth Amendment in Flux: The Rise and Fall of Probable Cause, 1979 U. Ill. L.F. 763.