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The Qualitative Fourth Amendment: The Case For A Refined, Information-Focused Approach To Fourth Amendment Cases Involving Non-Trespassatory Government Surveillance, Joshua L. Wagner

William & Mary Law Review

In his 2001 majority opinion for Kyllo v. United States, Justice Scalia adopted his characteristic chiding tone to gently reproach what he saw as a notably liberal departure from the original textual interpretation of the Constitution. The Katz test for Fourth Amendment violations, to Scalia, was plainly “circular, and hence subjective and unpredictable.” That it was one of the most influential and oft-discussed decisions the Supreme Court has ever handed down made little difference; regardless of whatever Justice Harlan and his successors had said, the Fourth Amendment was, at its heart, a protection against government interference with property and had …