The Qualitative Dimension of Fourth Amendment "Reasonableness (original) (raw)
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The Civil and Criminal Methodologies of the Fourth Amendment
The Yale Law Journal, 1984
The Fourth Amendment 1 controls both criminal and civil law enforcement activities, yet the courts have created distinctive methodologies 2 for deciding cases within each area. They have applied a stricter, more ruleoriented "probable cause" analysis 3 in criminal cases, but have resorted to a more flexible and less rule-bound "balancing" methodology in civil cases. Several recent Supreme Court decisions, 4 however, have begun to close this gap between civil and criminal cases by making balancing unexceptional in criminal cases. The Supreme Court has begun to reshape the Fourth Amendment's criminal methodology in the image of the civil. This Note argues that this recent expansion of the balancing approach is regrettable. Admittedly, it was time for a change in the role of the balancing methodology. We cannot cabin balancing within the civil cases if we take seriously the current explanations of when balancing should take place. But in adjusting the role of balancing, the Court should have restricted its use rather than expanded it. In all but a few types of cases, the traditional methodology of the criminal area offers a more workable and appropriate protection of the personal privacy interests secured by the Fourth Amendment than does balancing. 1. The Fourth Amendment provides: 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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. U.S. CONST. amend. IV. The text makes no distinction between civil and criminal searches and seizures. 2. The "methodologies" discussed in this Note can be defined as the procedures used to formulate Fourth Amendment issues rather than the substantive factors used to determine the outcomes. This Note's analysis begins with the commonplace idea that procedures have their own substantive implications. 3. Probable cause to search is that level of information which would allow a man of reasonable caution to believe that the thing to be searched for or seized will be found in a designated location. Probable cause is usually defined with regard to arrest warrants. See Brinegar v. United States, 338 U.S. 160, 175-76 (1949). The definition changes only slightly for searches, focusing on location rather than likelihood of guilt. See Zurcher v. Stanford Daily, 436 U.S. 547, 558 (1978). This standard governs most criminal cases, except for stop-and-frisk situations. See Terry v. Ohio, 392 U.S. 1 (1968) (officer may search suspect for weapons absent probable cause in order to protect himself). As used in this Note, "probable cause methodology" encompasses the warrant requirement. Before making a search or seizure, investigators must satisfy a magistrate that probable cause actually exists. Most types of probable cause searches or seizures must be warranted. Arkansas v. Sanders, 442 U.S. 753, 757-60 (1979). 4. See, e.g., Michigan v. Long, 103 S. Ct. 3469 (1983) (protective search of individual extends to search of his car); United States v. Place, 103 S. Ct. 2637 (1983) (warrantless seizure of luggage and passenger in airport); Florida v. Royer, 103 S. Ct. 1319 (1983) (plurality opinion) (investigative detention of suspect in airport).
Data Protection Versus Fourth Amendment Privacy: A New Approach Towards Police Search and Seizure
2005
reads: ''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, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.''
FAILING EXPECTATIONS: FOURTH AMENDMENT DOCTRINE IN THE ERA OF TOTAL SURVEILLANCE
Today’s reasonable expectation test and the third-party doctrine have little to nothing to offer by way of privacy protection if users today are at least conflicted about whether transactional noncontent data should be shared with third parties, including law enforcement officials. This uncertainty about how to define public expectation as a descriptive matter has compelled courts to defer to legislatures to find out what public expectation ought to be more as a matter of prudence than doctrine. Courts and others presume that legislatures are far better than courts at defining public expectations about emergent technologies. This Essay argues that the reasonable expectation standard is particularly flawed if it has the effect of encouraging judges to seek guidance from legislatures on constitutional norms and principles. Judicial review is the vital antimajoritarian check against excessive government intrusions on individual liberty under our constitutional scheme. This is a responsibility that courts cannot pass off to the political branches when, as is the case today, most people expect that the cost of network connection is total surveillance. It is beyond irony that, today, courts consult public expectation to determine private entitlements. This Essays argues that court-administered privacy law doctrine must change if the protection against “unreasonable searches and seizures” is to have any positive legal meaning. The current court-created doctrine will not be able to keep up if it compels judges to measure public expectation. It is time for courts to reassert their positive duty to say what privacy law is.
The Positive Law Model of the Fourth Amendment
Harvard Law Review, 2016
For fifty years, courts have used a “reasonable expectation of privacy” standard to define “searches” under the Fourth Amendment. As others have recognized, that doctrine is subjective, unpredictable, and conceptually confused, but viable alternatives have been slow to emerge. This Article supplies one. We argue that Fourth Amendment protection should be anchored in background positive law. The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection should depend on property law, privacy torts, consumer laws, eavesdropping and wiretapping legislation, anti-stalking statutes, and other provisions of law generally applicable to private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly. This approach rests on multiple grounds. It is consistent with the history of the Fourth Amendment and with the structure of protection in the closely related area of constitutional property. It draws upon fundamental principles of liberal constitutionalism, namely a concern about abuse of official power. And it is superior to current privacy-based doctrine in many practical ways: it is clearer, more predictable, more accommodating of variation in different times and places, and more sensitive to the institutional strengths of legislative bodies, particularly when it comes to issues presented by new technologies. It also has significant doctrinal implications. Of most immediate importance, it provides a framework to analyze third-party problems — situations in which information about one person is obtained from another — that is more coherent and more attractive than the modern third-party doctrine. It also provides a new framework for many other contested Fourth Amendment questions, from abandoned property and DNA to the use of drones.
In the 1985 case of United States v. Hensley, the Supreme Court ruled that the Fourth Amendment permits police officers to perform warrantless investigatory stops for completed felonies. However, Hensley explicitly declined to address whether the Fourth Amendment allows such stops to investigate suspicion of completed misdemeanors. Since then, courts have ruled inconsistently on this issue, creating uncertainty in this important area of search and seizure law. This Note attempts to settle this uncertainty by examining the Fourth Amendment's text, history, and jurisprudence. It argues that warrantless stops to investigate completed misdemeanors are constitutional when the underlying crime presents an ongoing danger.
The Continuity Principle, Administrative Constraint, and the Fourth Amendment
SSRN Electronic Journal, 2005
Critics have lamented the amoebic quality of Fourth Amendment jurisprudence. A test of general reasonableness proves to be almost no test at all. In an era in which fighting against terrorism has garnered the national limelight, all but the most intrusive law enforcement measures seem reasonable when measured against the less palpable assertions of privacy by individuals suspected of terrorism and criminal wrongdoing more generally. Law enforcement authorities can look through trash, 1 screen travelers at transportation hubs, 2 demand that suspects identify themselves, 3 stop motorists for pre-textual reasons 4 and so forth. Indeed, the more that law enforcement authorities are allowed to search, the less reasonable expectations of privacy can become: we as a society become inured to the whittling away of individual privacy. Given the growing acceptance of screening, checkpoints, and databases, courts largely have sided with law enforcement authorities in their continuing war on crime. © 2005 Harold J. Krent. Individuals and nonprofit institutions may reproduce and distribute copies of this Article in any format, at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision and copyright notice. * Dean and Professor, Chicago-Kent College of Law. I would like to thank Kathy Baker, Tracey Maclin, and Mike Pardo for their comments on earlier drafts, and thank Elizabeth Sietsema for her research assistance.
Notice and Standing in the Fourth Amendment: Searches of Personal Data
William and Mary Bill of Rights Journal, 2017
In at least two recent cases, courts have rejected service providers’ capacity to raise Fourth Amendment claims on behalf of their customers. These holdings rely on longstanding Supreme Court doctrine establishing a general rule against third parties asserting the Fourth Amendment rights of others. However, there is a key difference between these two recent cases and those cases on which the doctrine rests. The relevant Supreme Court doctrine stems from situations in which someone could take action to raise the Fourth Amendment claim, even if the particular thirdparty litigant could not. In the situations presented by the recent cases, by contrast, the service provider was the only source of possible challenge—at least for some meaningful period of time. In both cases, the searches were done pursuant to a warrant issued in accordance with the Stored Communications Act (SCA). Because the government proceeded by warrant, the government was not required to give notice to the target of ...
The Lost "Effects" of the Fourth Amendment: Giving Personal Property Due Protection
In addition to “persons, houses, [and] papers,” the Constitution protects individuals against unreasonable searches and seizures of “effects.” However, “effects” have received considerably less attention than the rest of the categories in the Fourth Amendment. Recent Supreme Court opinions on Fourth Amendment searches reintroduced the word “effects,” and yet they did so without a definition of the word, an understanding of its history, or a clear doctrinal theory. In the absence of a coherent approach to “effects,” many lower courts apply the standard Fourth Amendment test: they ask whether the government has violated the claimant’s “reasonable expectation of privacy.” However, many lower courts protect or decline to protect personal property by examining the individual’s expectation of privacy in the property’s physical location. These courts hold that individuals have no expectations of privacy in personal property that is unattended in public space. This Article argues that personal property in public space should receive greater constitutional protection than is provided by these cases, because of the privacy and security interests inherent in ownership and possession. The history surrounding the Fourth Amendment provides evidence that the protection against unreasonable searches and seizures was connected to the law prohibiting interferences with another’s possession of personal property, including dispossession, damage, or unwanted handling. To restore this connection, this Article uses guidance from personal-property law to propose a framework for identifying Fourth Amendment interests in effects based on their qualities and environment. This intervention would grant effects the constitutional protection they deserve.