Tuesday, May 15, 2012
William Stancil (University of Minnesota - Twin Cities - School of Law) has posted How Warrantless Search Cases Are Really All the Same (Minnesota Law Review, Forthcoming) on SSRN. Here is the abstract:
Fourth Amendment jurisprudence is an exercise in absurdity. Even with thousands of cases and hundreds of repeated fact patterns to rely on, courts aren't able to come up with consistent rules. In order to address the problem, this paper proposes a new way of thinking about warrantless searches. It ignores the debate over substantive Fourth Amendment law, and sidesteps the body of scholarly work that compares the "first principles" underlying different search regimes. Instead, it describes all searches as discrete events with common elements. Every search has a "subject" -- the object or space which has come under surveillance -- and a "method" -- the means used to reveal the subject. As a result, every search also has a universal, two-part conceptual structure. Much of the confusion over the Fourth Amendment occurs because judges ignore these fundamental features when writing search rules.The resulting opinions often fail to provide much guidance, even in future cases that share an element with the prior case. The problem is particularly severe when it is combined with the current Katz standard. The result is precedent that functions as a one-way ratchet against privacy protections: elements of a search that do not violate the Fourth Amendment are easy to identify, but elements that do violate the Fourth Amendment remain consistently ambiguous. In order to solve this problem, protect privacy, and ultimately create a warrantless search jurisprudence that actually makes sense, judges need to write more specific search rules that align with the preexisting conceptual structure of the searches themselves.