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Four Models of Fourth Amendment Protection


Orin S. Kerr


George Washington University - Law School


Stanford Law Review, Vol. 60, 2007
GWU Law School Public Law Research Paper No. 246
GWU Legal Studies Research Paper No. 246

Abstract:     
The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has refused to provide a consistent explanation for what makes an expectation of privacy reasonable. The Court's refusal has disappointed scholars and frustrated students for four decades. This article explains why the Supreme Court cannot provide an answer: No one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstances. Instead of endorsing one single approach, the Supreme Court uses four different tests at the same time. There are four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model. The use of multiple models has a major advantage over a singular approach, as it allows the courts to use different approaches in different contexts depending on which can most accurately and consistently identify practices that need Fourth Amendment regulation.

Number of Pages in PDF File: 54

Keywords: Fourth Amendment, Reasonable Expectation of Privacy, katz

JEL Classification: K14

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Date posted: March 26, 2007  

Suggested Citation

Kerr, Orin S., Four Models of Fourth Amendment Protection. Stanford Law Review, Vol. 60, 2007; GWU Law School Public Law Research Paper No. 246; GWU Legal Studies Research Paper No. 246. Available at SSRN: http://ssrn.com/abstract=976296

Contact Information

Orin S. Kerr (Contact Author)
George Washington University - Law School ( email )
2000 H Street, N.W.
Washington, DC 20052
United States
202-994-4775 (Phone)
202-994-9817 (Fax)
HOME PAGE: http://www.law.gwu.edu/faculty/profile.asp?ID=3568
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