World Without a Fourth Amendment

Abstract

The subject of this Article is suggested by a single question: How would we regulate searches and seizures if the Fourth Amendment did not exist? This question is a useful one to ask even leaving aside the possibility of amending the amendment. Starting on a blank slate, as it were, should free us from current preconceptions about the law of search and seizure, ingrained after years of analyzing current dogma. Viewed from this fresh perspective, we might gain a better understanding of the values at stake when the state seeks to obtain evidence or detain suspects. This new understanding in turn should invigorate criticism of current law, and might even lead to fundamental reinterpretations of the Fourth Amendment\u27s language. Starting from scratch, this Article develops an approach to search and seizure regulation that is very different from current law promulgated by the United States Supreme Court, yet at the same time is reconcilable with the amendment\u27s wording