NCJ Number
147515
Journal
Journal of Criminal Law and Criminology Volume: 84 Issue: 2 Dated: (Summer 1993) Pages: 249-309
Date Published
1993
Length
61 pages
Annotation
The relationship between the Fourth Amendment and the positive law is discussed.
Abstract
This article shows how state property law and other expressions of the positive law are more resilient and useful to Fourth Amendment analysis than the U.S. Supreme Court's decisions of the past three decades recognize. Stating that the Court's decision in Katz v. United States has been a dismal failure, the author argues that a renewed faith in the positive law would provide a concrete inventory of expectations drawn from local property, tort, contract, and criminal laws. Recognizing expressed expectations of privacy before resorting to unexpressed ones would not only make Fourth Amendment litigation more predictable, but more protective as well, at least where the positive law identifies an interest that a reviewing court otherwise could choose to ignore. The article is divided into three parts. Part I analyzes the legal bases for governmental confiscation of property by search and seizure. It traces the doctrine that identifies which property may be searched for and seized. The author questions whether the Court has really discredited property law, and to the extent that it has, is convinced that this changed only the way the Fourth Amendment is considered and was not worth the effort. Part II criticizes the distorted manner in which the property- privacy tension has been phrased. In its effort to address this narrow problem, the Court and its critics wrongly concluded that the Fourth Amendment demands a choice between property and privacy values. The author argues that the ascendancy of privacy as a Fourth Amendment standard, without more, is insufficient to support the dismissal of property law. Part III tracks the Court's discussions of property and other positive laws, and its habitual conclusion that those laws, while relevant, should not dictate Fourth Amendment outcomes. The author concludes that although selecting which positive laws should control Fourth Amendment outcomes may generate new headaches in place of the familiar problems with Katz, infusing local law into the Constitution nevertheless would be a desirable change. Specifically, reference to local law would fulfill the Court's stated objective of looking outside its own holdings for the expectations it purports to reflect.