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 06:55 AM | Comments (5) | 2L meta-blogging