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Laurent Sacharoff

2013

Fourth Amendment

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The Relational Nature Of Privacy, Laurent Sacharoff Jan 2013

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 …