Property and Probable Cause: The Fourth Amendment's Principled Protection of Privacy
71 Pages Posted: 17 Jan 2008 Last revised: 5 Aug 2008
Since 1967, the Fourth Amendment's protection from unreasonable searches has depended upon whether judges found the "expectation of privacy" invaded during a given search to be one society would deem protected. Asking judges to answer this subjective and speculative question has rendered the assessment of searches notoriously confused and unpredictable. It has also placed many searches that large segments of society would doubtlessly find intrusive beyond the Amendment's scope. For an even longer period, the judiciary has perpetuated the notion that search warrants provide substantial protection to the targets of searches. Even if that were ever true, since the creation of the "good faith" exception to the remedy of exclusion, warrants have primarily benefitted the police. Warrants now deprive search targets of the opportunity to challenge the prosecution's claim of probable cause at an after-the-fact, adversarial hearing.
Instead, probable cause is determined conclusively in an ex ante, ex parte proceeding by a magistrate lacking the incentive and the resources to scrutinize the government's assertions. These two pillars of current Fourth Amendment jurisprudence - that the Amendment protects privacy directly and that the warrant procedure provides great protection - in fact lead judges to balance away the right supposedly guaranteed.
This article proposes restoring to the Fourth Amendment a principled means for effectuating its primary purpose of barring general searches while also giving the Amendment the broad reach that modern government demands. Accomplishing this entails refocusing the amendment on its explicit protection of property. Rather than protecting a legal or technical conception of property, however, the text should be read (as certain analogous constitutional provisions are) with a colloquial, pragmatic gloss that reflects what people consider and treat as their own. This would eliminate the need and opportunity for judges to discern and weigh "privacy expectations" against asserted government needs. It would thus supplant the present arbitrary and unpredictable analysis with a more objective and consistent approach. To accomplish this, the article proposes that the warrant procedure must be deemphasized in favor of adversarial probable cause determinations. As long as the "good faith" exception insulates ex parte probable cause determinations from review, the warrant procedure will continue to force judges to decide Fourth Amendment questions on the basis of government allegations and judges' own speculation. To ensure that evolving notions of property are reflected in search decisions, those aggrieved by searches must be afforded the opportunity to challenge the government's actions.
Keywords: Fourth Amendment, search, constitutional law, criminal procedure
JEL Classification: K14
Suggested Citation: Suggested Citation