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.
Michael C. Pollack
The author wishes to thank Christopher Buccafusco, Marie-Amélie George, Hiba Hafiz, Michael Herz, Stewart Sterk, Lior Strahilevitz, Samuel Weinstein, and all of the participants at the Slices & Lumps Symposium for engaging comments and conversations.
A popular tweet (popular to a certain segment of folks roughly 250,000 strong, at least) chants, “Who are we? Single young professionals. What do we want? For perishable groceries to be sold in smaller portion sizes.”
I am grateful to Miriam Baer, William Baude, Maureen Brady, Christopher Buccafusco, David Carlson, Nestor Davidson, Myriam Gilles, Ben Grunwald, Daniel Hemel, Michael Herz, Orin Kerr, Timothy Mulvaney, Luke Norris, John Rappaport, Shelley Ross Saxer, Ric Simmons, Edward Stein, James Stern, Stewart Sterk, Lior Strahilevitz, Matthew Tokson, Felix Wu, Stephen Yelderman, and participants in the AALS New Voices in Property Law Workshop, Cardozo Junior Faculty Workshop, Law and Society Annual Meeting, Mid-Atlantic Junior Faculty Forum at the University of Richmond Law School, and Southeastern Association of Law Schools New Scholars Workshop for their guidance, suggestions, comments, and critiques. I thank the Stephen B. Siegel Program in Real Estate Law for research support.
On February 16, 2016, a federal court ordered Apple to “assist law enforcement agents in enabling the search” of an iPhone that had been lawfully seized during the investigation into a mass shooting in San Bernardino, California.
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