ambivalent imbroglio home

« BlawgCoop News: Welcome Bad Glacier! | Main | MT 3.15 upgrade »

January 27, 2005

The New Fourth Amendment

The SCOTUS decision in Illinois v. Caballes has sparked some sharp criticism. For example, here's what it basically does to the Fourth Amendment, according to Grits for Breakfast:
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 if an officer is looking for illegal contraband.
Many more links and great criticism where that came from. I don't have time to read around for more impressions; I have to hurry up and read about Fourth Amendment law in a CrimPro textbook that doesn't know Caballes exists. Oh, but you don't need Cabelles for Fourth Amendment law to seem pretty sad. First, Katz said the test for a “search” is whether you had a “reasonable expectation of privacy” in the thing or place or whatever that was searched, and whether society recognizes that as a legitimate expectation. So:
As Professor Amsterdam has put it, under the Katz expectation test, the government could control the extent of privacy interests simply by announcing “that we were all forthwith beng placed under comprehensive electronic surveillance.” (43)
Amsterdam, “Perspectives on the Fourth Amendment,” 58 Minn. L. Rev. 349, 384 (1974), quoted in Saltzburg and Capra, American Criminal Procedure. Can you say “TIPS Program”? The line of cases following Katz have constricted the scope of the Fourth Amendment in a predictable manner—the court has basically unlimited discretion to determine what counts as a “reasonable” and/or “legitimate” expectation of privacy. Oh, and according to Saltzburg and Capra, the “warrant clause” of the Fourth Amendment (the second part about warrants) has basically already been rewritten to say:
A search and seizure in some circumstances is presumed to be unconstitutional if no prior warrant is obtained, but in other circumstances the prior warrant is unnecessary to justify a search and seizure. (86)
So, hey, it looks likeGrits for Breakfast is right on the money w/that revised Fourth Amendment (above). My CrimPro textbook says so!

Posted January 27, 2005 06:55 AM | 2L meta-blogging

Amsterdam, and Saltzburg & Capra, are missing something important: they are assuming that "reasonable expectation of privacy" means "that which a reasonable person would expect to keep secret." It doesn't. My post on Caballes on the Volokh Conspiracy touches on this, and the law review article it links to has a lot on it.

Posted by: Orin Kerr at January 27, 2005 09:49 AM

Just thought you may like to know that in the Journal Competition for 1Ls last night they mentioned your posting in your blog last year about how much you enjoyed doing the competition. (It wasn't mentioned by name though.)

Posted by: 1L at January 27, 2005 05:40 PM

Prof. Kerr: I was able to skim the property rights section of your article and your argument is pretty convincing. Thanks for pointing it out. So do you think it would be more accurate to rephrase the test for a 4th Amend. "search" as something like: A search is unreasonable (and therefore requires a warrant) where it infringes on the right of a property owner or his/her agent to exclude others from his/her property?

Maybe I'll get a chance to read the rest of your article soon; I'd like to see your argument about how we should deal w/new technologies....

1L: Are you sure it was my blog? I mean, lots of GW peeps probably posted about how much they loved that competition, don't you think?

Ok, maybe not. FTR, I posted about beginning the competition here, then about finishing it (after the deadline had passed to hand it in) here. I still think it was fun, but I'm glad I don't have to do it again right now. My spring break is already going to be packed as it is...

Posted by: ambimb at January 27, 2005 10:16 PM

With all due respect to Professor Kerr, I want to be, as the Fourth Amendment promises, free from "unreasonable searches and seizures." Redefining a search so that it is no longer a search if the government is only searching for something that is illegal to possess is a downright Orwellian interpretation. Or, as I suggested this morning, it actually reminds me a bit more of Humpty Dumpty. That there is a property-rights fetishist's argument justifying the court's decision, I do not deny. But I think most Americans, if they look at the plain language of the Fourth Amendment and what the court just decided, would think that their rights had been diminished. Add to that the future tech concerns raised by ambivalent, and I think we're looking at a Fourth Amendment trend worthy of a serious 21st century correction.

I know BTW that Prof. Kerr's article said he was troubled by this, too. I'm just still venting. Best,

Posted by: Scott at January 28, 2005 03:40 PM

Maybe we should all come clean and admit that we live in a world of legal realism and just go home.

Posted by: musclehead at January 28, 2005 03:42 PM

about   ∞     ∞   archives   ∞   links   ∞   rss
This template highly modified from The Style Monkey.