Con Law Center Articles and Publications

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For decades, commentators have decried the Supreme Court’s Fourth Amendment search jurisprudence as a hopelessly confusing jumble. Critics save their harshest barbs for the judicially created “reasonable expectations of privacy” test, suggesting that it provides little guidance and leaves search cases open to wide judicial discretion. Motivated by such critiques, several Justices have recently claimed that an originalist approach could replace the reasonable expectations test, limit judicial discretion, and clarify the Fourth Amendment’s meaning.

This Article provides a comprehensive defense of the reasonable expectations test against originalist calls to abandon it. It notes two flaws in the originalist response. First, search jurisprudence is already largely “rulified”; courts use the reasonable expectations standard to create sub-rules addressing most search cases. Second, originalist models of the Fourth Amendment would not cabin judicial discretion more than the reasonable expectations test. Both require discretionary choices amongst the possible sources that give meaning to legal rules, and thus both can produce indeterminate legal tests.

Judges should continue to rely upon the reasonable expectations test to develop a rule-like search jurisprudence that will resolve most cases. Originalist models may supplement that process occasionally—such as in cases involving physical invasions of property—but a policy-focused reasonable expectations test should resolve most issues, including those involving new investigatory technologies and techniques. Reasonable expectations can guide investigators in the field, allowing them to work quickly within constitutional strictures without engaging in cognitively taxing interpretive debates. A search doctrine that becomes more rulified under the reasonable expectations test will further limit judicial discretion, both for lower courts and the Supreme Court.

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Houston Law Review



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