The Coherence of Orthodox Fourth Amendment Jurisprudence


In the legal academy it is widely believed that the U.S. Supreme Court's orthodox (post-Katz, pre-Houghton) fourth amendment jurisprudence is theoretically incoherent. In particular, the Court has been criticized (on doctrinal and textual grounds) for accepting (i) Justice Harlan's definition of a "search" as an infringement of a subjective expectation of privacy that society is prepared to recognize as reasonable, (ii) the Warrant Requirement and Probable Cause Requirement (according to which searches and seizures without a warrant or probable cause are presumptively unreasonable), and (iii) the Exclusionary Rule (according to which any evidence obtained in violation of a person’s fourth amendment rights may be excluded from any criminal case against her), while at the same time carving out numerous ill-defined and unprincipled exceptions to these general constraints. The purpose of this paper is to articulate a principled and textually supported rights-based theory of the fourth amendment that provides the best reconstruction of the Court’s orthodox opinions, and to argue that recent decisions (such as Houghton) indicating that the Court may abandon previous orthodoxy are fundamentally misguided.


Constitutional Law | Criminal Law | Criminal Procedure

Date of this Version

September 2003