Coping with Technological Change: Kyllo and the Proper Analytical Structure to Measure the Scope of Fourth Amendment Rights

Abstract:     
In analyzing any Fourth Amendment issues, two separate questions must be answered: is the Amendment applicable; and, if so, is it satisfied? This essay focuses on the first question. Only by understanding the meaning of the term “secure” is it possible to determine the scope of the Fourth Amendment’s protections for individuals and, correlatively, the amount of unregulated governmental power the Amendment allows. If one does not know what is protected by the Amendment, then it cannot be determined what the government can do. If one does know what is protected, any intrusion - either by a technological device or by use of the senses - should be considered a search and must be justified as reasonable. Thus, as one distinguished commentator has observed: “The key to the Amendment is the question of what interests it protects.”

There are three possible candidates for defining the scope of the Amendment’s protections: property, privacy, and security. Both the property and privacy approaches have proven to be inadequate. The Fourth Amendment speaks of the right to be secure and I have previously proposed invigorating that term in an article entitled What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 Wake Forest L. Rev. 307 (1998), and using it as the proper measure of the protection afforded by the Amendment. In my view, the Supreme Court’s decision in Kyllo v. United States represents a potentially giant step in that direction.

Keywords: fourth amendment, search and seizure, criminal procedure, constitutional law

working papers series