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What is a Search? Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy

NCJ Number
Stanford Law Review Volume: 55 Issue: 1 Dated: October 2002 Pages: 119-189
Sherry F. Colb
Date Published
October 2002
71 pages
This article describes a set of moves by the U.S. Supreme Court that have led to a devaluation of privacy.
The Fourth Amendment protects the right of people to be secure in their persons, homes, papers, and effects; and protects against unreasonable searches and seizures. The moves by the U.S. Supreme Court have defined much of what government officials do to investigate private citizens as falling outside the scope of the protection against unreasonable searches. These moves emerge repeatedly and play a significant role in shaping the doctrine of Fourth Amendment privacy. In the first move, the Court excludes from the category of searches those investigations that exploit an individual’s vulnerabilities to third party intrusion, even if this would constitute wrongdoing if it were carried out by a private third party. This is accomplished by calling various items knowingly exposed when they are hidden from public view. In the second move, the Court treats as already publicly disseminated that which has been exposed only to a limited audience. The Court has refused to apply the requirement of reasonableness to government examination of such things as telephone and bank records on the theory that the contents have already been willingly shared with strangers. There are doctrinal similarities between what it takes for something to be classified as not a search and what it takes for something to be deemed a consent search. The Court has engaged in a kind of strict criminal liability approach to individual freedom from unreasonable searches, which takes away the important rights at stake and does so on the false premise that those that benefit from such rights are typically lawbreakers. These moves are destructive and at odds with any strong vision of privacy. Recently, the Court has begun to distance itself from them in cases involving heat detection technology and perinatal cocaine testing. In these cases, the Court held that people might be able to maintain their reasonable expectations of privacy even when they have voluntarily given up materials from their most private places. 250 footnotes