'The Right of the People': Reconciling Collective and Individual Interests Under the Fourth Amendment

Abstract:     
The Court's Fourth Amendment jurisprudence contains a tension. On the one hand, the Court has conferred Fourth Amendment standing only upon those whose personal privacy interests have been disturbed. On the other hand, the Court has allowed such persons to invoke the exclusionary rule only in circumstances where, in the Court's view, it would serve as an effective deterrent to future government misconduct. This article traces those two policies to different conceptions of the Fourth Amendment: the first interprets the Amendment as a guarantor of individual rights; the second construes it as an instrument for securing a collective right. The Court, by oscillating between these two conceptions, has eroded Fourth Amendment protections more severely than it could have done under either conception standing alone. The article suggests a way of harmonizing the atomistic and collective views that leads to a new standing analysis designed to protect both aspects of the Court's dualistic conception.

Number of Pages in PDF File: 40

Keywords: fourth amendment, standing, collective rights, exclusionary rule, deterrence

Accepted Paper Series