Anybody familiar with Fourth Amendment law knows that it is utterly incoherent. In his new paper, Four Models of Fourth Amendment Protection, my colleague, Orin Kerr (GW Law School) argues that this incoherence is actually a good thing. He attempts to sort out the muddle that currently exists in Fourth Amendment law into four models. From the abstract:
The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has repeatedly refused to provide a consistent explanation for what makes an expectation of privacy reasonable. The Court’s refusal has disappointed scholars and frustrated students for four decades. This article explains why the Supreme Court cannot provide an answer. It shows that there are four different tests for what makes an expectation of privacy reasonable, not one, and it argues that the Supreme Court has declined to give a single answer because the reasonable expectation of privacy framework is a bottom-up rather than top-down regulatory system. The exclusionary rule requires hundreds and even thousands of narrow rules explaining when an expectation of privacy is reasonable, and the Supreme Court hears too few cases to generate them. The Supreme Court must delegate the process of rule-creation to decentralized lower courts, and the lower courts must announce rules case-by-case. No one top-down approach can regulate this decentralized, bottom-up system, which means that the Supreme Court cannot provide a single answer to what makes an expectation of privacy reasonable. On the other hand, the existing four models reflect the needs of the bottom-up system far better than any single test. The four models provide the tools lower courts need to create localized Fourth Amendment rules that accurately identify reasonable police practices.
For anybody interested in Fourth Amendment law, Orin’s article is a must read.