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51 U. Louisville L. Rev. 591 (2013)
Subjective Intent and the Police-Created Exigency Doctrine: The Lawlessness of the Lawfulness Test
Ben Lowry*
Abstract

There are currently over 450,000 local and state police officers in the United States. Of these, approximately 70% have duties that include responding to calls for service. In fulfilling their duties, these “on the beat” police officers are routinely required to make discretionary decisions about how best to enforce the law, ranging from the relatively simple decision of whether to pull over a vehicle for a minor traffic violation to the comparatively more complicated decision of whether to conduct a search or  seizure without a warrant. Although a certain degree of police discretion is undoubtedly necessary in order to maintain an effective system of law enforcement, it also poses a serious risk of abuse. Inherent in the concept of discretion is the ability to choose between alternative courses of action. Thus, delegations of discretionary authority to police raise the possibility that police choices about how to enforce the law will be made not for the purpose for which the authority was originally delegated, but for other, improper ends, such as the personal benefit of police officers or the expediency of capturing a known criminal without following the meticulous and inflexible rules of criminal procedure. This possibility is particularly troublesome with respect to police discretion in the context of the Fourth Amendment, both because of the serious constitutional rights at stake and because of the legal complexity often involved in determining whether a particular search or seizure is constitutionally permissible. Nevertheless, the majority of the discretionary authority possessed by police “has to do with determining how to invoke the criminal process and when to use a variety of investigative techniques, and thus falls within the realm of fourth amendment activity.”

* J.D. Candidate, May 2013, Louis D. Brandeis School of Law, University of Louisville; B.A., Political Science, 2010, The Ohio State University. The author would like to thank his father, Edwin J. Lowry, Jr., for always encouraging him to do his best and giving him the opportunity to do so.