Much of the current confusion about the scope of the Fourth Amendment stems from two major decisions with opposing fact patterns. In Entick v Carrington, damages were rightly awarded when the King’s officers ransacked the plaintiff’s premises while searching for allegedly seditious materials. In Boyd v United States, on the other hand, the United States was denied access to a single record— identified in advance—that could have exposed a tax fraud. The yawning gap between these two cases highlights the dangers of treating these two Fourth Amendment landmarks as parts of a continuous whole. A close review of these and similar cases suggests an alternative, two-part approach to “unreasonable searches and seizures,” one that weakens the supposed link between trespasses and searches. Many trespasses involve no search, just as many searches involve no trespass. A special notion of privacy is therefore not needed to unify the field. Instead, a comprehensive account of searches should force closer attention to the unreasonableness notion built into the text of the Fourth Amendment. In my view, its correct explication allows “reasonable suspicion”—as articulated in Terry v Ohio—to cover any search that identifies a conversation or detects suspicious activities from off premises. If that initial search yields sufficient information, then there is probable cause to listen in on the conversation or enter and search the premises.
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