Back to the Future: Returning to Reasonableness and Particularity Under the Fourth Amendment
34 Pages Posted: 21 Feb 2014 Last revised: 12 Apr 2014
Date Written: February 19, 2014
Abstract
Issuing one-hundred or fewer opinions per year, the United States Supreme Court cannot keep pace with opinions that match technological advancement. As a result, in Riley v. California and United States v. Wurie, the Court needs to announce a broader principle that protects privacy in the digital age. That principle, what we call “seize but don’t search,” recognizes that the constitutional touchstone for all searches is reasonableness.
When do present-day circumstances — the evolution in the Government’s surveillance capabilities, citizens’ phone habits, and the relationship between the NSA and telecom companies — become so thoroughly unlike those considered by the Supreme Court thirty-four years ago that a precedent…simply does not apply? The answer, unfortunately for the Government, is now.
Keywords: privacy, technology, search and seizure, Riley, Wurie, Katz, Chimel, search incident to arrest, Fourth Amendment, constitutional law
JEL Classification: K14, K40, K42
Suggested Citation: Suggested Citation