For almost twenty years the Supreme Court has used the "reasonable expectation of privacy" formula in fourth amendment cases to decide the threshold question whether government activity amounted to a search. By predicating fourth amendment protection on a threat to the interest protected by that provision, the adoption of this formula marked a significant advance in fourth amendment analysis. The Court's description of that privacy interest, however, overly constricts fourth amendment protection by limiting it to cases in which one had a reasonable expectation of privacy. This analysis overlooks the purpose for protecting an interest in privacy: privacy is protected not only for its own sake, but also because it facilitates the enjoyment of other constitutional benefits. This Article endorses such an instrumental view of the fourth amendment and the privacy interest it protects. After showing that this view is consistent with constitutional text, structure, and history, the author proposes a methodology for deciding fourth amendment threshold questions that is consistent with an instrumental view. The Article then considers the ramifications of this methodology for several traditional fourth amendment cases.
James J. Tomkovicz,
Beyond Secrecy for Secrecy's Sake: Toward an Expanded Vision of the Fourth Amendment Privacy Province,
36 Hastings L.J. 645
Available at: https://repository.uchastings.edu/hastings_law_journal/vol36/iss5/1