42 Pages Posted: 4 May 2005
This essay demonstrates that in the area of Fourth Amendment law doctrine and technology are inextricably linked. I focus on brief searches in public places for weapons, a category of search that largely dominates the Fourth Amendment landscape. I demonstrate that the problems with the current method of detecting handguns are as much a function of technology as of law; courts have had to permit searches by pat downs, metal detectors, and x-ray machines based upon less than probable cause because they do not have any other options. Perhaps the problem is not with the least invasive search doctrine that the courts have adopted, but with the methods that are currently the least invasive means for detecting weapons. The essay investigates emerging technologies that may lead the courts out of the constitutional muddle in which they find themselves on the question of weapons detection. While the use of these technologies would certainly be an improvement over current practices, it becomes clear that what is needed is a device that can reliably separate those carrying weapons from those who are not without providing any other information about the individuals being screened. This hypothetical smart detector would not constitute a search under the Fourth Amendment and could provide law enforcement with probable cause to make a more invasive search. Because it would place searches for weapons back within the rubric of probable cause, this new technology could aid law enforcement in its ability to detect concealed weapons while at the same time protecting civil liberties. It would also have the added benefit of tidying up a messy bit of Fourth Amendment doctrine.
Keywords: Privacy, Fourth Amendment, Technology, Search and Seizure
Suggested Citation: Suggested Citation
Kamin, Sam, Law and Technology: the Case for a Smart Gun Detector. Law and Contemporary Problems, Vol. 59, p. 221, 1996. Available at SSRN: https://ssrn.com/abstract=711981