Kentucky Law Journal, Vol. 63, No. 4 (1975), pp. 873-894


The Burger Court has continued to relax federal constitutional restraints on the power of police and prosecutorial officials to detect and convict persons suspected of crime. During the 1973 Term, the fourth amendment right to be free from unreasonable search and seizure appears to have been the principal casualty of the Court's permissive attitude toward the exercise of governmental authority to enforce criminal laws. Although over half a dozen search and seizure cases were decided, in not a single one did the Court find that evidence had been obtained in violation of the fourth amendment. Other decisions narrowly interpreted the fifth amendment privilege against self-incrimination and the sixth amendment right to counsel. The only federal constitutional rights receiving a liberal construction by the Burger Court were those guaranteed under the first amendment and the sixth amendment right to confrontation. Moreover, the Burger Court reasserted its inclination, first manifested in California v. Green, to set aside state judgments giving too generous an interpretation to a federal right. The Burger Court's continued reluctance to interference with the enforcement of criminal laws has caused state courts to persist in their attempts at evasion, producing many recent cases worthy of examination. This emerging "new federalism" also provokes speculation concerning its continued vitality and the Supreme Court's probable reaction.