This Article rehearses a response to the problems posed to and by the Supreme Court's attempts to work out the meaning and operation of the word "search." After commencing Part II by meditating on the notion of privacy, I take up its relation to the antecedent suspicion or knowledge that Fourth-Amendment law requires as a justification for all privacy invasions. From there, I look specifically at that uneasy relation in Supreme Court jurisprudence, which has come to privilege privacy over property as a Fourth Amendment value. From there, Part III reviews the sources or bases that can tell us what can count as private: 1) the positive laws of property, tort, crime, and contract; 2) laborious questioning of the sort performed by Chris Slobogin; and 3) the routine versus nonroutine nature of the governmental surveillance in question (let's call this the O'Connor position from Florida v. Riley, recently resurrected in Bond v. United States). To the extent that the routine nature of some intrusive actions does not disqualify them as unacceptably intrusive, Part IV suggests an alternative method for determining what constitutes a search. In order to establish that the intentions of both search victim and police should play an important role in this determination, I take some care to look at the unhappy role that intentions currently play in Supreme Court jurisprudence, particularly in the context of so-called "pretexts." After mapping my criticisms of the Court's analysis of intentions in that context onto the question of what constitutes a search, I am able to take a position on the extent to which spying (as opposed to more coercive police actions) should be regulated by the Fourth Amendment.
Daniel B. Yeager,
Overcoming Hiddenness: The Role of Intentions in Fourth Amendment Analysis,
Available at: https://scholarlycommons.law.cwsl.edu/fs/208