Fourth Amendment Fiduciaries

Fourth Amendment law is sorely in need of reform. To paraphrase Justice Sotomayor’s concurrence in United States v. Jones, the idea that people have no expectation of privacy in information voluntarily shared with third-parties—the foundation of the widely reviled “third-party doctrine”—makes little sense in the digital age. In truth, however, it is not just the third-party doctrine that needs retooling today. It is the Fourth Amendment’s general approach to the problem of “shared information.” Under existing law, if A shares information with B, A runs the risk of “misplaced trust”—the risk that B will disclose the information to law enforcement. Although the misplaced trust rule makes sense as a default, it comes under strain in cases where A and B have no relationship of trust and the only reason that A shares information with B is to obtain a socially valuable (and practically indispensable) service. In such cases, I argue that the doctrine should treat B as an “information fiduciary” and analyze B’s cooperation with law enforcement—whether voluntary or compelled—as a Fourth Amendment search. The argument develops in three parts. Part I demonstrates that the Court has already identified two settings—if only implicitly—where fiduciary-style protections are necessary to safeguard constitutional privacy: medical care and hotels. When A is a patient and B is a doctor, and, likewise, when A is a guest and B is a hotel manager, the Court has been reluctant to apply the “misplaced trust” rule. Rightly so: the principle is mismatched to the underlying relationship. From there, Part II fleshes out the normative argument. Put simply, we do not “trust” information fiduciaries, in the everyday sense, at all. So it makes little sense—normatively, or even semantically—to speak of trust being “misplaced.” Rather, the information is held for the benefit of the sharing party, and its use should be constrained by implied duties of care and loyalty. Finally, Part III lays the groundwork for determining who are “Fourth Amendment fiduciaries.” The Article concludes by exploring various practical metrics that courts might adopt to answer this question

The Right of the People : Reconciling Collective and Individual Interests Under the Fourth Amendment

Professor Doernberg examines a tension within fourth amendment jurisprudence and sugqests a means of resolving it. On the one hand, the Supreme Court has conferred fourth amendment standing only upon those whose personal privacy interests have been disturbed. On the other hand, the Court has allowed such persons to invoke the exclusionary rule only in circumstances where, in the Court\u27s view, it would serve as an effective deterrent. Professor Doernberg traces these two po1icies to different conceptions of the fourth amendment: the first interprets the amendment as a guarantor of individual rights; the second construes it as an instrument for securing a collective right. He then shows how the Court, by oscillating between these two conceptions, has eroded fourth amendment protections more severely than it could have done under either conception. The author suggests that the atomistic and collectice views of the fourth amendment be harmonized and sets forth a view of the proper scope of standing to invoke the exclusionary remedy under a dualistic conception of fourth amendment rights

Further Punishing the Wrongfully Accused: Manuel v. City of Joliet, the Fourth Amendment, and Malicious Prosecution

Manuel v. City of Joliet is before the Supreme Court to determine whether detention before trial without probable cause is a violation of the Fourth Amendment, or whether it is merely a violation of the Due Process Clause. Every circuit except the Seventh Circuit treats this type of detention as being a violation of the Fourth Amendment; only the Seventh Circuit considers this question under the Due Process Clause. This commentary argues that the Supreme Court should look to its precedent, which clearly treats pretrial detention without probable cause as being a Fourth Amendment issue, and reverse the Seventh Circuit. To hold otherwise would deprive the wrongfully accused of a potential federal remedy, and reduce them to seeking a remedy in potentially biased state courts

Wrong But Reasonable : The Fourth Amendment Particularity Requirement After United States v. Leon

This Note analyzes the application of the good-faith exception to search warrant particularity violations under the Fourth Amendment. The question compelled by United States v. Leon and Massachusetts v. Sheppard is when, if ever, a particularity-defective warrant will sustain an officer\u27s reasonable reliance.\u27\u27 The Note briefly discusses how particularity traditionally has been assessed under the fourth amendment. The author examines the Supreme Court\u27s holding in Massachusetts v. Sheppard, and contrasts several circuit court cases that have applied Sheppard\u27s objectively reasonable standard of good faith to warrants involving particularity defects. Finally, the Note concludes that the approach taken by the Second Circuit Court of Appeals in United States v. Buck is a preferable approach because it encourages courts to establish clearer standards for the particularity of warrants under the Fourth Amendment

Wrong But Reasonable : The Fourth Amendment Particularity Requirement After United States v. Leon

This Note analyzes the application of the good-faith exception to search warrant particularity violations under the Fourth Amendment. The question compelled by United States v. Leon and Massachusetts v. Sheppard is when, if ever, a particularity-defective warrant will sustain an officer\u27s reasonable reliance.\u27\u27 The Note briefly discusses how particularity traditionally has been assessed under the fourth amendment. The author examines the Supreme Court\u27s holding in Massachusetts v. Sheppard, and contrasts several circuit court cases that have applied Sheppard\u27s objectively reasonable standard of good faith to warrants involving particularity defects. Finally, the Note concludes that the approach taken by the Second Circuit Court of Appeals in United States v. Buck is a preferable approach because it encourages courts to establish clearer standards for the particularity of warrants under the Fourth Amendment

The Constitutionality of Abortion

The purpose of this study is to determine whether abortion is constitutional under the Fourth Amendment. Essentially, the Supreme Court used what is known as the “right to privacy” which they created using the First, Fourth, Fifth and Ninth Amendments finding penumbras of the Bill of Rights, and in the concept of liberty guaranteed by the first section of the Fourteenth Amendment. This study addresses the history of the right to privacy and tries to show that the Supreme Court stretched the meaning of these Amendments beyond what the founders of the Constitution intended. This study analyzed the application of the Fourth Amendment in the cases of Olmstead v. United States, Griswold v. Connecticut and Katz v. United States, in order to show the evolution of the Fourth Amendment. Using dissenting opinions from the cases this study attempts to show that the so called “right to privacy” is unconstitutional and therefore, the Fourth Amendment does not apply to abortion, thereby making the same unconstitutional. The study did discover that although the Supreme Court has declared abortion Constitutional in the case of Roe v. Wade, strong arguments could be made against its Constitutionality. In so doing, this study tries to show that if no general right to privacy exists, then abortion is unconstitutional

Can You Hear Me Now? : Expectations of Privacy, False Friends, and the Perils of Speaking Under the Supreme Court\u27s Fourth Amendment Jurisprudence

Part I of this article offers a brief history of the development of Fourth Amendment jurisprudence and the Court\u27s articulation and application of what has come to be known as the exclusionary rule, which forbids some (but not all) government use of evidence seized in violation of the Fourth Amendment. Part II focuses on the false-friend cases, elaborating the Court\u27s reasoning and showing why, although the most famous cases involve varying kinds of activity from electronic recording to eavesdropping to simple reporting of the false friend\u27s observation, the Court\u27s method has united these cases under a single analytical rubric. Part III discusses the unavoidable implication of the Court\u27s approach, and Part IV examines whether there is a principled way out of the dilemma that the Court\u27s reasoning has created. It concludes that there is, but the solution requires recognizing two unstated assumptions that undergird the Court\u27s jurisprudence in this area, assumptions that, when exposed to light, are highly questionable. The Court needs to reconsider how expectations of privacy really work. It has tended to view expectation of privacy as an all-or-nothing proposition, so that for Fourth Amendment purposes, lack of a reasonable expectation of privacy with respect to one person connotes that there cannot be a reasonable expectation with respect to anyone else. The Article suggests that this approach does not reflect the way that either those who wrote and ratified the Fourth Amendment or the majority of Americans today think about privacy. The Supreme Court should recognize, therefore, that when the government employs false friends to gather evidence for use in a criminal case, it does no more than to undertake a search with other eyes and ears and a seizure with other hands. It is a government intrusion all the same. Accordingly, the Fourth Amendment\u27s warrant requirement, which demands probable cause and the acquiescence of a neutral magistrate in the proposed search, should apply in full force

To Attach or Not To Attach: The Continued Confusion Regarding Search Warrants and the Incorporation of Supporting Documents

The Fourth Amendment mandates that a search warrant particularly describe what is to be searched or seized. Courts have allowed officers to use supporting documentation, such as affidavits and other attachments, to define, but not expand, the limits of a search. However, the use of these supporting documents creates a problem when the document is referenced in the warrant but is not physically attached to the warrant. This Note argues that the protection of the Fourth Amendment is not the warrant itself, but the guarantee that a warrant, fully detailing the search to be undertaken, has been approved by a neutral magistrate

The Political Fourth Amendment

The Political Fourth Amendment builds on Justice Ginsburg\u27s recent dissent in Herring v. United States to argue for a “more majestic conception” of the Fourth Amendment focused on protecting political liberty. To put the point dramatically, we misread the Fourth Amendment when we read it exclusively as a criminal procedure provision focused entirely on either regulating police or protecting privacy. In order to see the Fourth Amendment as contributing to the Constitution\u27s protections for political liberty, and not simply as an invitation to regulate police practice, we must take seriously the fact that the Fourth Amendment\u27s textual purpose is to secure a “right of the people,” which places it textually alongside the First, Second, and Ninth Amendments that similarly seek to protect the “right[s] of the people.” Narratives focused on regulating police or protecting privacy each risk blinding us to the Fourth Amendment\u27s broader constitutional setting. By looking at the historical origins of the Fourth Amendment in relation to substantive First Amendment concerns, and examining the textual significance of protecting a “right of the people,” this Article argues that the two dominant narratives overlook a central political purpose of the Fourth Amendment. The political Fourth Amendment seeks to protect the political liberties of the sovereign “People.” Focused exclusively on protecting privacy by regulating police practice, current Fourth Amendment doctrine offers no protection to anything a person knowingly exposes to others, a hazard in an era of electronic social networking. Reading the Fourth Amendment back into the Constitution makes available new grounds for the Constitution\u27s relevance in an age of pervasive electronic surveillance