Professor Cunningham was the winner of the 1988 Scholarly Paper Competition sponsored by the Association of American Law Schools. The following article is an abridged version of that winning paper, adapted from a transcript of his presentation to the 1988 AALS Annual Meeting. His thesis is that semantic analysis of  common sense  meanings of the word  search  can provide and approach to interpreteing the scope of the Fourth Amendment which is both faithful to the text and flexible enough to meet the demands of changing times. In a much longer article appearing in 73 Iowa Law Review No. 3 (March 1988) he supports his  common sense approach  with a detailed analysis of the amendment\u27s legislative history and its relation toe pre-Revolutionary events and , picking up where this paper ends, applies the semantic analysis to the Supreme Court\u27s major cases of the last 20 years which have interpreted the scope of the Fourth Amendment

Cunningham, Clark D.

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In Search of Common Sense: A Lingustic Approach to Fourth Amendment Law

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Law Quadrangle (formerly Law Quad Notes) Volume 32 Number 3 Article 8 Spring 1988 In Search of Common Sense: A Lingustic Approach to Fourth Amendment Law Clark D. Cunningham University of Michigan Law School Follow this and additional works at: https://repository.law.umich.edu/lqnotes Recommended Citation Clark D. Cunningham, In Search of Common Sense: A Lingustic Approach to Fourth Amendment Law, 32 Law Quadrangle (formerly Law Quad Notes) - (1988). Available at: https://repository.law.umich.edu/lqnotes/vol32/iss3/8 This Article is brought to you for free and open access by University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Law Quadrangle (formerly Law Quad Notes) by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact mlaw.repository@umich.edu. Clark D. Cunn Pn,fasor Cumzingham was the winner of the 1988 Scholarly Paper Competition sponsored by the Association of American Lnw Schools. The following article is nn abridged version of that winning paper, adapted from a transcript of his I- presentation to the 1988 AALS Annual Meeting. His thesis is that semantic analysis 4 "common sense" meanings of the word "search" can pro- .:: vide an approach to interpreting the scope of the Fourth Amendment which is both faithful to the text and flexible emuah to meet the demands of &king high resolution aerial photographs of an open air chemical plant, Dow Chemical Co. v. United States (1986); (5) picking up a stereo turntable and looking at the serial number on the bottom, Arizona v. Hicks (1987); and (6) peering into a barn interior with a flashlight to see an illicit drug laboratory, United States v. Dunn (1987). The decisions in these six cases provoked startling dissension among the members of the Court. No one justice joined the majority opinion in all six cases and al l  but three joined harsh dissents in at least one case. The inability of the current Court to agree consist what "search" means in the Fourth Amendment . J , changing times. In a kuch longer article tireiring mirrored by a universal complaint hwn the scholarly - in 73 Iowa Law m i n o  NO. 3 (March 1.988) k community d es not make that sense. this ar$$#$yrth &T - .. \& :~-,l~-~.*p~~:;;~;;,-~:q~~~+ @yndment..!fy , supports his "common sense approach" with a ,A- detailed analysis of the amendment's legislative The problems we have today can be traced back 60 years ago to the famous Supreme Court case of %, history and its relation to pre-Revolutionary United States v. Olmstead (1928). Federal agents had events and, picking up where this paper ends, listened to Olmstead's telephone conversations by i. applies the semantic analysis to the Supreme placing a wiretapping device on the telephone wire Court's major cases of the lasf 20 years at a point outside Olmstead's property. The question : which have interpreted the scope of the presented to the Supreme Court was whether that i Fourth Amendment. activity was a search and therefore fell within the warrant requirements of the Fourth Amendment. In a 5-4 decision the Court held that no search warrant was required because no search took place. The Court was split between two dramatically people & ~pe, ae&a in thea: - opposed positions expressed in the majority ophon papa+ and affeds,~agaidn$r- - ,, by Chief Justice Taft and a famous dissent by Justice *ww@~l&f@ @&% ~ d , ~ ~ 8 F .  ~h$ -- . Brandeis. Thft said: The amendment itself shows that the search is to be of material things - the person, the house, his papers or 1 . .  4 / , '  , '  p:<( _ I Y i  , , q;$; yj$?'Gg $*$$$ &T A r,., Justice Brandeis not only expanded the textual "right to be secure" into a more general right of privacy; he also effectively removed the limiting phrase "against unreasonable searches and seizures" by insisting that the means employed were irrelqvant. His "interpretation" could therefore be fairly character- ized as an amendment, illustrated by superimposing @+&the language of his dissent on the constitutional text &using ., ,X +- the style of statutory drafting: The right of the people [to be s e w  in their persons, houses, papers and effects] TO BE LET ALONE [against unreasonable searches and seizures1 shall not be V V Because of this willingness 6 change or abandon . ..textual language to implement underlying policy. %,$?&% *$J have called the interpretation exemplified by ;&Brandeis's dissent the policy interpretation. in the Amendment can mean both "search of' and "search out," but not "search fof and have applied the common sense approach to the Court's post-Katz cases, including the six recent cases which provoked such dissension on the Court.) Some readers may suspect at this point that my ultimate goal is to make a normative claim: that semantic analysis will produce the authoritative interpretation of "search* in the Fourth Amendment. I am not making the claim that semantic analysis will lead to the Grail of constitutional scholars: the "right answer" to what given constitutional provi- sions mean. The common sense approach is at best a plausible interpretation of "search," not necessarily the "correct" interpretation. I will confess, however, that there is a normative component to my project but it is not addressed to the question of authority. I believe that the common sense approach deserves serious consideration because it gives coherent shape to the developing case law and provides a basis for reasoned debate. The Supreme Court's current interpretation of "search is that "a + K Z 2  %& From 1928 to the day debates over 'search' occurs whe; an expectation of privacy that constitutional interpretation continue to be polarized society is prepared to consider reasonable is infringed." between the positions typified by the Taft and Brandeis This formulation, usually referred to as the "legiti- &pinions. ' Ihs  the ap&i t overding of Olmstead by mate expectation of priiaqf' test, has pmduceh ?@$he Supreme Courfs seminal 1967 decision in Kntz v. ?$$:$, A,e- s ~ \ L   , an incoherent body of decisions and has deprived %X$%,~::United ?-L*+,., States has taken on doctrinal significance gZ$+:;$j the country of a meaningful vocabulary to use in $"j;,beyond b&4m* the confines of Fourth Amendment law. Many 88 discussing the scope of the Fourth Amendment.  commentators assume that Kafz represents the ultimate > A  One can say with some certainty that the Court's L -*FA %victory of the policy interpretation'of the scope of the :xE ~ourth Amendment. 3yp5v;>7 ., 5-5 ->>,*, + :i ,. The purpose of my paper is to demonstrate that " ' " .-. . ' there is a viable interpretive approach between these extremes, which I call the "common sense approach." p~,wThis interpretation retains the textual language much .&*more than the policy interpretation yet expands the eaning of search beyond the limitations of Taft's opinion. The Common Sense Approach is grounded in semantic analysis of the word "search as used everyday language. This analysis draws on the <:linguistic competence shared by all English speakers :-G4.* 5% i,lB4'Tf to reveal that "search" has three distinct senses with :I-?; differing semantic structures: (1) to make a search of something, (2) to search fm something, and (3) to search out something. First I will desaibe the semantic features which constiwte and distinguish these three senses. I will then use this semantic analysis to ' describe the transition from Olmstead to Katz, and I will < \ .*?- f-p?;: claim that the Katz decision most accurately is desaibed g% as an application of the common sense approach. (In %,-? my Iowa Law Review article I have explained the textual '-6 .2-qw and historical reasons for concluding that 'searches" interpretatibn is so vague as to be literally meaningless, without regard to whether or not the interpretation is "correct." Indeed, we can not even discuss its correctness unless we are able to understand what it means. The demand that a key legal term like "search" be meaningful is such an obvious normative claim that we tend to ignore its importance. The fundamental value of a common sense interpretation of a legal text is that its meaning draws on the enormous existing semantic resources of everyday language. We lose these resources whenever we disregard the common sense meaning of a kgal t a t .  I am not saying that a court should never move away from the common sense interpretation of a text, but only that there are substantial costs incurred when a court does so. The current state of Fourth Amendment law is powerful evidence of these costs. Semantic analysis suggests that these costs need not be incurred by revealing within the "common sense" meaning of even a seemingly simple word like "search* much of the flexibility that advocates of the poky interpretation seek and despair of finding in the t e n a n o w  literalism represented by Taft's opinion. sense does not contain an affected object feature "- -- + . ,$T.. , in Goldman% office- The S $. ,A. ,; ,:$? -: $:+$ p*+**gy , : ;- \ , yet no one would think that the Fourth Amendment applied it to that activity. What made the action in Silvmnan different from pounding a nail into the wall? Not the fact of movement into an area, the distinctive semantic feature of "search of." If there was a search at dl, it was because the FBI searched out the conversations that were taking place in Silverman's home by the use of this microphone. The fact that there was an actual physical intrusion really was irrelevant. tate of Fourth Amendment law famous 1967 decision nuib;i&,ooi~m; wt ha nitidzed this fixmu- of 

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In Search of Common Sense: A Lingustic Approach to Fourth Amendment Law

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