The Real Rules of 'Search' Interpretations
Luke M. Milligan
University of Louisville - Louis D. Brandeis School of Law
July 3, 2012
William & Mary Bill of Rights, Vol. 21, Issue 1, 2012
In Katz v. United States the Supreme Court held that a Fourth Amendment “search” is a matter of objective and evolving privacy expectations. Over the ensuing decades Katz has had only a marginal impact on the Court’s “search” decision-making.
The static between paper and real rules in the “search” context is well documented. Yet explanations for this phenomenon continue to elude commentators. This article suggests that the cause of the interpretive static in “search” decision-making is a constraint termed the “atomic code.”
The atomic code has three properties. First, justices evaluate each “search” issue without regard for coherence across the spectrum of “search” issues. In effect, the “search doctrine” is simply an aggregation of search “atoms.” A second property of the atomic code is that justices attribute content to new search atoms through analogies to old search atoms. While initially every search atom is dormant, over time a justice, either informally or through adjudication, will gradually attribute content — “search” or “non-search” — to her atoms by drawing from the content of analogous search atoms. The third property of the atomic code is that a justice will not reassess an atom’s content once she has made her initial attribution.
The atomic code is not a function of judicial politics, vague doctrinal tests, or suboptimal empirical data on “privacy expectations.” Rather, the code’s roots run deeper. It is in large part attributable to two factors. One is the concreteness of the term “search.” The other is the justices’ preference for a calibrated retroactivity of criminal procedure rules. These two factors, more than any others, have caused justices to treat the “search” doctrine as atomistic, to attribute content to such atoms through analogical reasoning, and to fix content upon attribution.
Paper rules aside, the real rules of “search” adjudication are prescribed by the atomic code. The code inhibits not only the justices’ application of Katz’s objective and evolving privacy standard but, more generally, the justices’ incorporation of their contending normative theories into “search” decision-making.
Number of Pages in PDF File: 66
Keywords: Fourth Amendment, Constitutional Law, JurisprudenceAccepted Paper Series
Date posted: July 4, 2012 ; Last revised: December 5, 2012
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