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Outsourced Law Enforcement, Kiel Brennan-Marquez
Outsourced Law Enforcement, Kiel Brennan-Marquez
Faculty Articles and Papers
How should the Constitution think about "outsourced law enforcement"-that is, investigative activity carried out by private actors that substitutes, in practice, for the labor of law enforcement officials? Existing doctrine offers a simple answer to this question, centered on chronology. If the government was responsible for outsourcing law enforcement-if a private actor was operating as an "agent or instrument" of the state-Fourth Amendment scrutiny applies, just as it would apply to the conduct of state officials.' If, on the other hand, the outsourcing transpired voluntarily-if a private actor decided, without prodding, to assist the authorities-no Fourth Amendment scrutiny applies. This …