Academic journal article Harvard Law Review

The Positive Law Model of the Fourth Amendment

Academic journal article Harvard Law Review

The Positive Law Model of the Fourth Amendment

Article excerpt

CONTENTS  Introduction.  I. The Positive Law Model     A. Mechanics    B. Distinguishing the Trespass Theory  II. The Cases for the Positive Law Model    A. History   B. Structure   C. Legality and Government Power   D. Practical Advantages     11. Clarity    22. Adaptability    33. Institutions    E. Privacy and Beyond   F. Objections     11. Mutability    22. Adminidtrability    33. Baselines    44. Endogeneity  III. The Positive Law Model Action    A. Explaining Current Law   B. Sorting Out Three-Body Problems     11. Third-Party Doctrine    22. First- and Third-Party Consent    33. Additional "Standing" Requirements?    C. Revising Current Law     11. Abandonment    22. Dronss    33. Seres    44. Open Fields Reconsidered    D. Implementing the Positive Law Model  IV. CONCLUSION 


"The touchstone of Fourth Amendment analysis," the Supreme Court has told us, "is whether a person has a 'constitutionally protected reasonable expectation of privacy.'" Such statements must be taken with a few grains of salt. The Fourth Amendment protects against searches and seizures, but reasonable expectations of privacy have almost nothing to do with what qualifies as a seizure. Even for searches, the Court's declaration is more than a little misleading. It is, frankly, a truism that privacy is at stake when it comes to deciding what actions count as Fourth Amendment "searches": to restrict the ability of government agents to act in ways likely to reveal information is necessarily to increase privacy. The real issue isn't whether some piece of information or place is in fact private but whether it should be. Privacy is the answer to be given, not the question to be asked; the effect, not the cause.

In practice, therefore, the fulcrum of the "reasonable expectation of privacy" doctrine ends up being "reasonable," not "privacy." And reasonableness reduces either to a difficult empirical question about intuitions and social norms (those expectations "society is prepared to recognize as 'reasonable'" (1)) or to a largely open-ended policy judgment (those expectations a court deems "legitimate" (2)). In determining whether an expectation of privacy is reasonable, courts appear to ask themselves if the act at issue is the sort that government officials should be prohibited from taking without offering additional justification or obtaining a warrant. (3) At its core, in other words, the inquiry is little more than a restatement of the Fourth Amendment itself. The reasonable expectation of privacy doctrine could more accurately be described as the reasonable expectation of Fourth Amendment protection doctrine. Privacy is the MacGuffin of Fourth Amendment law. It is the knob we twist because it looks "as if it could be used to turn on some part of the machine," but it is in reality "a mere ornament, not connected with the mechanism at all." (4)

The reasonable expectation of privacy concept has other serious defects, including its ambiguous meaning, its subjective analysis, its unpredictable application, its unsuitability for judicial administration, and its potential circularity. We are happy to repeat these criticisms but we are hardly the first to raise them. They have been exhaustively developed in Fourth Amendment scholarship over the last half-century. (5) Despite these notorious defects, however, the doctrine hangs on, seemingly impervious to outside criticism. We suspect the reason largely arises from a sense that the connection between privacy and the Fourth Amendment is simply self-evident. The test has its difficulties, the thinking seems to be, but the inescapable truth is that privacy is the Fourth Amendment's polestar. How could things be otherwise?

But they could be. This Article challenges the foundations of the privacy-centered understanding, offering an alternative vision of the Fourth Amendment and a replacement for the reasonable expectation of privacy doctrine. In bits and pieces, the approach we advocate has been kicking around in Fourth Amendment case law for some time, though it is also the subject of periodic judicial denunciations, emphatic in tone if eventually disregarded. …

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