Law Commons^™

Carpenter's Legacy: Limiting The Scope Of The Electronic Private Search Doctrine, Sarah A. Mezera

Michigan Law Review

One of the most significant challenges confronting courts and legal scholars in the twenty-first century is the application of Fourth Amendment doctrine to new technology. The circuit split over the application of the private search doctrine to electronic devices exemplifies how courts struggle to apply old doctrines to new circumstances. Some courts take the position that the old doctrine should apply consistently in the new context. Other courts have changed the scope of the old doctrine in order to account for the change in circumstances. The Supreme Court took the latter position in Carpenter v. United States and held that …

Fourth Amendment Textualism, Jeffrey Bellin

Michigan Law Review

The Fourth Amendment’s prohibition of “unreasonable searches” is one of the most storied constitutional commands. Yet after decades of Supreme Court jurisprudence, a coherent definition of the term “search” remains surprisingly elusive. Even the justices know they have a problem. Recent opinions only halfheartedly apply the controlling “reasonable expectation of privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a few justices in open revolt.

These fissures hint at the Court’s openness to a new approach. Unfortunately, no viable alternatives appear on the horizon. The justices themselves offer little in the way of a replacement. And scholars’ proposals exhibit …

The Mosaic Theory Of The Fourth Amendment, Orin S. Kerr

Michigan Law Review

In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a "mosaic theory" of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that …