Oren Kerr has posted a new version of Four Models of Fourth Amendment Protection on SSRN. Here is the abstract:
The Fourth Amendment protects reasonable expectations of privacy, but the Supreme Court has refused to provide a consistent explanation for what makes an expectation of privacy reasonable. The Court’s refusal has disappointed scholars and frustrated students for four decades. This article explains why the Supreme Court cannot provide an answer: No one test can accurately and consistently distinguish less troublesome police practices that do not require Fourth Amendment oversight from more troublesome police practices that are reasonable only if the police have a warrant or compelling circumstances. Instead of endorsing one single approach, the Supreme Court uses four different tests at the same time. There are four models of Fourth Amendment protection: a probabilistic model, a private facts model, a positive law model, and a policy model. The use of multiple models has a major advantage over a singular approach, as it allows the courts to use different approaches in different contexts depending on which can most accurately and consistently identify practices that need Fourth Amendment regulation.
Highly recommended. I have enormous respect for Kerr’s work.