(x-posted from Coffee House Talks)
In doing the initial framing for an article on how to apply Helen Nissenbaum’s theory of Contextual Integrity to the 4th Amendment, it has become apparent that there are differences between how natural language would classify whether something is a search, a reasonable search, or an excused or unexcused reasonable search, and how the law would classify the same action. Now this is not a mind-blowing observation, as it has been understood for some time that the fact of some things being classified as “not a search” for Fourth Amendment purposes is just kind of weird. However, I believe the differing categorizations of the two areas have implications when asking what an ideal Fourth Amendment doctrine would look like, so I’ll explore that here.
First, the basics. The Fourth Amendment requires a two part determination in order to find a violation due to a search. First, the doctrine asks whether there was a “search” at all, that is, whether the police action in question violates a “reasonable expectation of privacy.” There are quirks (actually, some outright insane conclusions) about what counts, but that’s the test. If no “reasonable expectation of privacy” was violated, there was no search and thus the Fourth Amendment simply does not apply. Second, assuming there was a search, the doctrine asks whether the search was reasonable. This makes sense, as the Fourth Amendment only prohibits “unreasonable” search. (Yes, I also think it’s unnecessarily confusing that both halves use the word “reasonable,” with different meanings, but I can’t do much about it unless I get appointed to the Court someday.) A search is reasonable, generally speaking, if there is either a valid warrant, or some reason that a warrant is not required (e.g. hot pursuit or a frisk for weapons with reasonable suspicion of danger).
It’s important to note here that these tests are legal conclusions and are not designed to echo natural language, though I’m beginning to think they might be improved by lining up with it (a claim that will probably show up in the article). While the descriptive half of contextual integrity is essentially about defining a reasonable expectation of privacy, its conclusions would apply to the natural language categories, and not the legal test. So, in natural language, something is a search, loosely speaking, if the cops are going looking for something. It is a reasonable search if they don’t violate your privacy to do so, and it is either an excused unreasonable search or a search made reasonable if they have a warrant or do not need one due to circumstances.
Ok, so there are six categories of “actions” that a police officer can take with respect to searching. They are:
- Passively seeing something
- Actively looking for something in a context where we do not have a “reasonable expectation of privacy”
- Actively looking for something in a context where we have a “reduced expectation of privacy.”
- Actively looking for something in a context where we have a “reasonable expectation of privacy,” with no warrant, but with circumstances excusing the lack of warrant.
- Actively looking for something in a context where we do have a “reasonable expectation of privacy” with a warrant.
- Actively looking for something in a context where we do have a “reasonable expectation of privacy” with no warrant and no excuse.
Note: Outside of the legal context, it is not clear that the category of “reduced expectation of privacy” makes any sense, but the automobile exception, saying that an officer does not need a warrant to search a car, is partially based on that idea.
The chart below shows the mapping of each action to the various categorical bins. Note here that the doctrinal examples are based off of law, and not a contextual integrity analysis. If we were to accept current law as the correct outcome, each example could probably be thought to lie in the correct natural language bin. (In fact, the way to determine what the law should be might well turn out to be identifying the correct natural language bin for the action, and then mapping onto the legal structures, but I have to think a lot more about that).
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| Chart: Natural Language vs. Fourth Amendment on Search Click to enlarge |
The most obvious thing to notice here is that the automobile exception that relies on the so called “reduced expectation of privacy” should really be analyzed in the same way as the “no expectation of privacy” that dismisses something as a search. Right now, the legal consequences are the same, but they come at different parts of the analysis. Other than that, I believe clarifying the discrepancies will help when trying to come up with a coherent theory of Fourth Amendment search. Current doctrine has no such coherence.