“Widespread” Uncertainty: The Exclusionary Rule in Civil-Removal Proceedings

Welcome to the Supreme Court’s emergency docket. Like the Twilight Zone, the emergency docket is “the middle ground between light and shadow,” and hence is the core of the so-called “shadow docket.” Commentators have criticized the Court’s shadow-docket interventions: Summary orders shirk the Court’s responsibility to resolve important legal issues in reasoned opinions informed by complete briefing and oral argument, are unwise because they risk premature decisionmaking before issues percolate in the lower courts, provide insufficient or confusing direction for lower courts, and undermine the Court’s legitimacy because of their “shadowy” deliberation. My big problem is that shadow-docket stays deeply (not just technically) undermine the rule of law and violently affect the lives of people like O.C.G. without sufficient legal justification.

The canonical test for Fourth Amendment searches looks to whether the government has violated a person’s reasonable expectation of privacy. Yet the Supreme Court has recently added a property-based test to address cases involving physical intrusions. Further, influential judges and scholars have proposed relying primarily on property in determining the Fourth Amendment’s scope. This Article exposes the overlooked flaws of a property-centered Fourth Amendment. It examines the complications of property law, explores the malleability of property rights, and reveals how governments can manipulate them. Normatively, Fourth Amendment regimes based on property are likely to be underinclusive and grounded in trivial physical contact while ignoring greater intrusions. Finally, because property is unequally distributed, its use as a determinant of Fourth Amendment protections risks leaving disadvantaged members of society with the least protection. While property concepts will sometimes be relevant, they should be used very carefully, and very little, in Fourth Amendment law.

Imagine you go to Toronto for a weekend trip with your family. While driving home to Detroit, a border agent pulls you aside, brings you into an isolated room, and asks you, seemingly out of nowhere, “How many times a day do you pray?”