Warranted Exclusion: A Case for a Fourth Amendment Built on the Right to Exclude

76 SMU L. REV. 315 (2023)

SMU Law Review, Vol. 76, No. 2, 2023

55 Pages Posted: 31 Mar 2021 Last revised: 23 Aug 2023

See all articles by Mailyn Fidler

Mailyn Fidler

University of New Hampshire Franklin Pierce School of Law

Date Written: August 23, 2023

Abstract

Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine—the reasonable expectation of privacy test—struggles with conceptual clarity and predictability. And the leading competitor, what I call the “maximalist” property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible conception of property rights—what this Article terms a “situational right to exclude.” When a searchee has a right to exclude some law-abiding person from the thing to be searched, in some circumstance, the government must obtain a warrant before gathering information about that item. Keeping the government out is warranted when an individual has a situational right to exclude; it is exactly then that the government must get a warrant.

Keywords: Fourth Amendment, privacy, property law

Suggested Citation

Fidler, Mailyn, Warranted Exclusion: A Case for a Fourth Amendment Built on the Right to Exclude (August 23, 2023). 76 SMU L. REV. 315 (2023), SMU Law Review, Vol. 76, No. 2, 2023, Available at SSRN: https://ssrn.com/abstract=3799319 or http://dx.doi.org/10.2139/ssrn.3799319

Mailyn Fidler (Contact Author)

University of New Hampshire Franklin Pierce School of Law ( email )

Two White Street
Concord, NH 03301
United States

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