What is a "Search" Within the Meaning of the Fourth Amendment
As Professor Amsterdam has said about the Fourth Amendment, there are "few issues more important to a society than the amount of power it permits its police to use without effective control." When it labels certain governmental quests to obtain evidence as not a search within the meaning of the Fourth Amendment, the Supreme Court insulates those activities from any judicial oversight. Defining a search is a two-sided inquiry: governmental actions must invade a protected interest of the individual. If the individual does not have a protected interest, actions that might otherwise be labeled a search will not implicate the Amendment. If a person has a protected interest, then the focus turns to the governmental techniques to obtain tangible things or information. Much has been written about what constitutes an individual's protected interest, which the Court measures by utilizing the often-criticized reasonable expectation of privacy standard. This article does not add to that discussion; instead, it assumes that the individual has a protected interest and focuses on the part of the inquiry that has often been neglected, that is, what governmental methods of obtaining tangible things or information are-or should be-considered invasions of the individual's protected interest and, hence, a search within the meaning of the Fourth Amendment.
The article first examines the historical background of the Fourth
Amendment, emphasizing the physical intrusions that animated its adoption.
It then details the Court's treatment of the concept of a search,
cataloguing the types of governmental activities. That activity may include
physical manipulation, visual observations, other use of the senses, and the
employment of instrumentalities, such as a dog's nose or technological
devices. In Supreme Court jurisprudence, physical manipulation by the
police comes closest to a common sense understanding of what a search is.
That literal view must be contrasted with other situations, particularly
sense-enhancing devices, where the legal definition is divorced from the
ordinary meaning of the term, permitting the Court to conclude that no
search has occurred. The use of technological devices to learn something
that would not otherwise be discovered is so rapidly expanding that it is
difficult to grasp all of the myriad ways the government can obtain tangible
evidence or information. Therefore, it is essential that the Court provide
a comprehensive definition of the concept of a search to ascertain when the
Amendment is implicated by a device that the government employs. This
article proposes that any intrusion with the purpose of obtaining physical
evidence or information-either by a technological device or the use of the
senses-into a protected interest should be considered a search and,
therefore, must be justified as reasonable. That definition is based on
several considerations, which are detailed in the article, including, most
importantly, that the Amendment's fundamental purpose is to protect
individuals.
