CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Friday, April 20, 2012

Kerr on Jones and the Mosaic Theory of the Fourth Amendment

Orin S. Kerr (George Washington University - Law School)

Orin S. Kerr (George Washington University - Law School) has posted The Mosaic Theory of the Fourth Amendment (Michigan Law Review, Forthcoming) on SSRN.  Here is the abstract: 

In the Supreme Court’s recent decision on GPS monitoring, United States v. Jones (2012), five Justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions have always evaluated each step of an investigation individually. Jones introduced what we might call a “mosaic theory” of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. 

This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and dilemmas that a mosaic theory would raise, and it analyzes the ways in which the mosaic theory departs from prior understandings of the Fourth Amendment. It makes three major points. First, the mosaic theory offers a dramatic departure from existing law. Second, implementing the theory requires courts to answer a long list of novel and challenging questions. Third, the benefits of the mosaic theory are likely to be modest, and its challenges are likely to be great. Courts should approach the mosaic theory with caution, and may be wise to reject it entirely.

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