Bambauer on How the War on Drugs Distorts Privacy Law

Jane Yakowitz Bambauer (Visiting Assistant Professor, Brooklyn Law School) has published How the War on Drugs Distorts Privacy Law (64 Stan. L. Rev. Online 131). In part:

The U.S. Supreme Court will soon determine whether a trained narcotics dog’s sniff at the front door of a home constitutes a Fourth Amendment search. . . .

The Essay concludes by proposing how Fourth Amendment analysis can be reconfigured to accommodate both the old model of individualized suspicion and new suspicionless models designed to decrease discretion. It argues that courts should require three elements before determining that use of a new tool does not constitute a search: (a) low error—the screen significantly outperforms the accuracy rates of traditional probable cause warrants; (b) uniform application—all citizens are equally likely to be screened; and (c) negligible interference—the tool itself should not cause adverse effects. The drug sniff in Jardines fails on all three of these factors and would not be allowed under this rubric, but future law enforcement technologies might not.