Author(s)
Orin Kerr
Source
Stanford Law Review, Vol. 60, pp.503-551, November 2007
Summary
This paper asks whether Supreme Court rules protecting privacy make sense.
Policy Relevance
The rules for when investigators need a warrant to protect privacy rights must be very complex, because police cases are in reality complex.
Main Points
- The Supreme Court says the police need a warrant to carry out a search when the subject of the search has a “reasonable expectation of privacy.” But “reasonable” is hard to define. The Court must figure out which searches are harmless and which ones are likely to be abused, but there is no simple rule they can follow to tell the difference.
- The Court has four different tests, letting lower courts choose the best test for each case:
- In the probabilistic model, the court looks at whether the search subject’s would be likely to succeed in keeping the information private. This test is often used when many people are involved.
- In the “private facts” model, the court looks at whether the information deserves protection. A dog or chemical test that sniffs out drugs is not finding any information deserving protection, so no warrant is needed. This test is often used with new technologies.
- The “positive law” model asks if the police cross existing legal boundaries like property rights. It is often used when physical access to areas like homes is involved.
- The “policy model” asks if this type of search creates a risk of abuse. This is used in unsual circumstances, such as searches of prison cells, when other tests do not fit.
