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The Sacred Fourth Amendment Text, Christopher Slobogin
The Sacred Fourth Amendment Text, Christopher Slobogin
Michigan Law Review Online
The Supreme Court’s jurisprudence governing the Fourth Amendment’s “threshold”—a word meant to refer to the types of police actions that trigger the amendment’s warrant and reasonableness requirements—has confounded scholars and students alike since Katz v. United States. Before that 1967 decision, the Court’s decisions on the topic were fairly straightforward, based primarily on whether the police trespassed on the target’s property or property over which the target had control. After that decision—which has come to stand for the proposition that a Fourth Amendment search occurs if police infringe an expectation of privacy that society is prepared to recognize as …
How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker
How Definitive Is Fourth Amendment Textualism?, Evan H. Caminker
Michigan Law Review Online
Professor Jeffrey Bellin’s excellent article advances a comprehensive and straightforward textual approach to determining what policing activities constitute “searches” triggering the protections of the Fourth Amendment. Bellin’s thesis is that a text-based approach to interpreting the Amendment is superior to the Supreme Court’s current approach, which ever since Katz v. United States has defined “search” primarily by reference to a non-textual “reasonable expectation of privacy” standard. After soundly criticizing the ungrounded and highly subjective nature of the Katz test, Bellin declares that the Court should instead simply follow where the text leads: the Amendment protects people from a search, meaning …