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THE MOSAIC THEORY OF THE FOURTH AMENDMENT
In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a \"mosaic theory \"of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly difficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parameters of the sequential approach to Fourth Amendment analysis.
Journal Article
Too Much Information: How Not to Think About Privacy and the Fourth Amendment
Fourth Amendment law today is overloaded with information: not just in the sense that the explosive growth of digitized information requires rethinking traditional rules of search and seizure, but also and more importantly in the sense that a preoccupation with data flows has led to the neglect of important dimensions of privacy. There is no doubt that the control of personal information is an important value and one uniquely threatened by the rise of social media, the proliferation of technological surveillance, and the arrival of Big Data. But the reduction of privacy to control over information has made it more difficult to think sensibly about the distinctive threats raised by government searches, and it is partly to blame for the growing and unwarranted sense that the Fourth Amendment should be decoupled from privacy—because the concept of privacy is meaningless, because privacy is dead or dying, or because the main threats to privacy are largely orthogonal to the chief dangers posed by law enforcement. Search-and-seizure law would be better served by an understanding of privacy rooted in respect for a zone of refuge and informed by privacy's longstanding associations with enclothement, retreat, and personal sovereignty. This alternative conception of privacy—privacy as refuge—should also be attentive to the relational nature of privacy, the connection between privacy and civility, and the effects of privacy violations on the perpetrators as well as the victims.
Journal Article
Randomization and the Fourth Amendment
Randomized checkpoint searches are generally taken to be the exact antithesis of reasonableness under the Fourth Amendment. In the eyes of most jurists, checkpoint searches violate the central requirement of valid Fourth Amendment searches—namely, individualized suspicion. We disagree. In this Article, we contend that randomized searches should serve as the very lodestar of a reasonable search. The notion of \"individualized\" suspicion is misleading; most suspicion in the modern policing context is group based and not individual specific. Randomized searches by definition are accompanied by a certain level of suspicion. The constitutional issue, we maintain, should not turn on the question of suspicion-based versus suspicionless police searches, but on the level of suspicion that attaches to any search program and on the evenhandedness of the program. In essence, we argue for a new paradigm of randomized encounters that satisfy a base level of suspicion and that will provide the benefits of both privacy protection (by ensuring a minimum level of suspicion) and evenhandedness (by cabining police discretion), the very values we wish to protect through the Fourth Amendment.
Journal Article
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.
Journal Article
\WAS THAT A YES OR A NO?\ REVIEWING VOLUNTARINESS IN CONSENT SEARCHES
\"Can we take a look inside your car? \" More than half of all roadside searches begin this way. A consent search is a cop's quickest and easiest way to look for evidence in a car, in a home, or on a suspect's person. Perhaps because of that, it is not always clear in practice that answering no really means no. The Supreme Court has long held that consent searches must be completely voluntary or evidence stemming from that search may not be admitted against the suspect searched. This rule deters unconstitutional law enforcement tactics. But the Court has not provided the doctrinal tools to keep law enforcement in check. Appellate courts are currently free to review voluntariness only for \"clear error\" by the trial court, leading to a toothless review. This Note argues that voluntariness in consent searches must be reviewed de novo on appeal. This independent review doctrinally aligns with the Supreme Court's criminal standard-of-review jurisprudence. In contrast, deferential review leaves criminal defendants with insufficient Due Process surrounding the waiver of constitutional rights. It allows individual trial courts, rather than appellate courts, to determine the substance of the law and allows similar facts to lead to different legal results. It thus leaves law enforcement officers with inadequate guidance on what the Fourth Amendment allows and demands. The inherent psychological pressure of being questioned by the police, cultural fear of law enforcement, and a pattern of discriminatory requests to search create situations likely to result in coercion. Although de novo review of voluntariness would lead to added burdens on the appellate docket, courts should grasp the nettle and take steps to unify the law.
Journal Article
The Harms of Heien: Pulling Back the Curtain on the Court's Search and Seizure Doctrine
In Heien v. North Carolina, the Supreme Court held that individuals can be seized on the basis of reasonable police mistakes of law. In an opinion authored by Chief Justice Roberts, the eight-Justice majority held that the Fourth Amendment's prohibition of \"unreasonable\" seizures does not bar legally mistaken seizures because \"[t]o be reasonable is not to be perfect.\" Concurring, Justice Kagan, joined by Justice Ginsburg, emphasized that judicial condonation of police mistakes of law should be \"exceedingly rare.\" In a solo dissent, Justice Sotomayor fairly \"wonder[ed] why an innocent citizen should be made to shoulder the burden of being seized whenever the law may be susceptible to an interpretive question.\"
Journal Article