Fourth Amendment Scholarship, Doctrine, and Application

**Our March Presentation in the CJR Workshop Series Features a special event featuring TWO papers. To accommodate the complementary papers, our program will run slightly longer.**

Paper 1:

Rulifying Reasonable Expectations: How Katz and Originalism Can Work Together To Create a More Determinate Fourth Amendment

Prof. Michael Gentithes, Assistant Professor of Law, University of Akron School of Law

For decades, commentators have decried Fourth Amendment search jurisprudence as a hopelessly confusing jumble, claiming that the “reasonable expectations of privacy” test provides little guidance and wide discretion. Several Justices have recently suggested that an originalist approach could replace the reasonable expectations test, limit judicial discretion, and clarify the Fourth Amendment’s meaning.

That originalist response has two flaws. First, search jurisprudence is in fact already largely “rulified;” courts have used Katz’s reasonable expectations standard to create sub-rules addressing a large proportion of the factual situations that arise in search cases. Second, originalist models of the Fourth Amendment would not cabin judicial discretion any 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.

There is a way forward. A policy-focused reasonable expectations test should resolve most new cases—including those involving new investigatory technologies and techniques. 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.

Paper 2:

More Than Friends: A Paradigm for the Fourth Amendment's Third-Party Doctrine

Prof. Eang Ngov, Associate Professor of Law, Barry University Dwayne O. Andreas School of Law

The third-party doctrine, developed from a series of cases in which criminals shared information with other criminals, informants, or undercover agents, is premised on the rationale that we hold no reasonable expectation of privacy when we voluntarily expose information to others and have assumed the risk that the third-party would share the information. Subsequent cases, notably Miller and Smith, extended the doctrine to business records but took no notice of how the dynamics of trust change when you change the person or entity receiving the trust. Whether a person has an expectation of privacy in the information shared should depend on with whom the information is entrusted and the context in which the information is shared.

This article proposes a new paradigm for the third-party doctrine by paring it back to the concept of false friends, which originally animated the doctrine. If we accept that one should bear the consequences of making false friends, then we should examine what is a false friend. A false friend is one whom you have misplaced trust. One may have the misfortune to misplace trust with friends, colleagues, neighbors, and family, and any of them could rightly be placed in the “false friend” position. But to attribute the appellation of “false friend” to businesses would be inappropriate because the relationships with businesses are distinctly different from friendships. There is an expectation of privacy in information conveyed to businesses because we reasonably rely on them to keep our information private.

After Miller and Smith, whenever the Court confronted a case involving a defendant’s exposure of information to a third-party to which the Court determined there was an expectation of privacy, the Court either ignored the third-party doctrine or labored to distinguish it. The fact that the Court disregarded the third-party doctrine or engaged in jurisprudential gymnastics to provide contorted distinctions makes these cases meaningful: it signifies the recognition that too much privacy would be swallowed by the third-party doctrine and signals that the time has come to rethink the doctrine.

The CJR Workshop Series offers a forum for academics to share works-in-progress. Workshops are limited to 20 participants on a first-come, first-served basis.