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The Relational Nature Of Privacy, Laurent Sacharoff
The Relational Nature Of Privacy, Laurent Sacharoff
Laurent Sacharoff
The hard Fourth Amendment cases, especially those involving surveillance, ask whether the police investigative tactic at issue counts as a “search”; if not, the Fourth Amendment does not apply at all. Under the Court’s main test, at least for surveillance without a trespass, the police conduct a “search” if they invade a person’s reasonable expectation of privacy.
But when the Court assesses Fourth Amendment privacy, it treats it as an all-or-nothing concept without regard to the relation between the person searched and the person searching. For example, the Court has held that when the police rummage through a person’s garbage …