Double Reasonableness and the Fourth Amendment
Recently the Supreme Court has placed new limits on both the substance of the Fourth Amendment and the exclusionary that serves as the principal remedy for Fourth Amendment violations. In this Article we briefly summarize these limitations and then argue that the curtailment of the exclusionary rule has the potential to ameliorate substantive Fourth Amendment doctrine. The limited reach of the modern exclusionary rule provides the Court with license to develop an expansive new substantive framework free of the specter of a correspondingly expansive remedial framework. One point on which nearly all jurists and commentators agree is that current Fourth Amendment doctrine is a mess. We argue that the Court’s exclusionary rule cases, while frustrating and ill-conceived if viewed in isolation, provide the Court with an opportunity to revisit problematic Fourth Amendment doctrine that was born under a very different remedial regime. Such an approach would allow the Court to adhere to its current view of the exclusionary rule as a remedy of last resort while creating a Fourth Amendment with teeth. The goal is a Fourth Amendment right that is more substantial and clearly defined, but a remedy that remains limited to egregious violations of clear substantive rules. The time is now to lift the Fourth Amendment fog.
Surveillance Technology and the Loss of Something a Lot like Privacy: An Examination of the "Mosaic Theory" and the Limits of the Fourth Amendment
Introduction: Public ... Privacy? The Fourth Amendment before Privacy The "Privacies of Life"--Boyd v. United States Trespass versus Dignity--Olmstead v. United States Public View--United States v. Lee The Tortured Life of the "Trespass Rule" The "Privacy" Amendment--Katz v. United States The Reasonable Expectation of Privacy: Decoupling Property from the Fourth Amendment Measuring Privacy as "Reasonable Expectation" Surveillance Technology and the Public/Private Boundary Privacy on Public Streets: United States v. Knotts and "Beeper" Tracking Privacy and Aerial View Open Fields: Oliver v. United States Aerial Surveillance: Ciraolo and Riley Property and the Right to Exclude Technology-Based Surveillance: Kyllo v. United States New Surveillance Technologies and the Demand for "Public Privacy" Global Positioning System Unmanned Aerial Surveillance Attempting to Define a Right to Privacy in Public Space United States v. Maynard Knotts and the Question of "Dragnet" Surveillance Actual Exposure Constructive Exposure "Mosaic Theory" and Its Implications for Surveillance Technologies United States v. Jones and the Future of the "Mosaic Theory" Criticisms of "Mosaic Theory" Knotts Controls The "Mosaic Theory" is Unworkable The Problems of the "Mosaic Theory" are Better Handled by Statute Conclusion INTRODUCTION: PUBLIC ... PRIVACY? In an article in the Kansas Law Review, Chief Justice William Rehnquist offered a now well-known hypothetical that summarized the tension inherent in the normative concept of "privacy" and its particular manifestation in Fourth Amendment jurisprudence. (2) In his hypothetical, Chief Justice Rehnquist asks the reader to imagine a police officer standing in the parking lot of a bar from the hours of 5:30 p.m. to 7:30 p.m. every day. (3) Each day, the police officer takes notes and records the license plates of every vehicle that parks in the lot adjacent to the bar in order to identify the bar's "regulars." At this point, assume that the police officer has no particular reason to know of any unlawful conduct by the bar's patrons. Rehnquist imagines that this type of persistent surveillance activity, conducted without suspicion of criminal wrongdoing, and done solely for the purpose of recording names for future police reference is police conduct that most persons would rightly, in his appraisal, feel uneasy about, intuiting it to be an inappropriate law enforcement function. (4) Despite the sense that people would find this type of "extreme" surveillance activity disturbing, Chief Justice Rehnquist purposely avoids labeling this disturbed sensibility as "privacy." (5) For him, "there can be no question that driving an automobile down a public street and into a parking lot of a bar, which is itself open to the general public, is not in any normal sense of the word a 'private' act." (6) Instead, as any member of the general public is free to engage in the same observational conduct attributed to the police in this hypothetical, this uneasiness is merely a sense that unwarranted, persistent surveillance is not a proper governmental function. (7) For the Chief Justice, the ability or inability to exclude observation of one's conduct--call it secrecy (8)--is the touchstone of constitutionally cognizable "privacy." Chief Justice Rehnquist described these facts as "extreme," (9) which is correct in that it would be unusual in the United States for a law enforcement officer to engage in prolonged visual surveillance simply for the sake of collecting volumes of information on persons not suspected of any wrongdoing. However, in a more modern sense, this hypothetical is no longer so extreme. (10) Replacing the formerly necessary beat-cop with technologically-enhanced surveillance systems makes the execution of persistent government observation in public spaces more covert and less costly. …
Legal Functionalism and Social Change: A Reassessment of Rosenberg's The Hollow Hope: Can Courts Bring About Social Change?
Reviews Rosenberg's book and concludes that it systematically underestimates the significance of Brown and other decisions in bringing about social change.