When Orin Kerr  announced that his law review article on a new approach to 4th Amendment jurisprudence was published in the Stanford Law Review, I knew I would break my solemn rule of never reading anything from the left coast or with the letters L.Rev. in the citation.  I couldn’t help myself.

But the title was interesting: Four Models of Fourth Amendment Protection.  I like Fourth Amendment protection.  In fact, it’s a very interesting subject for me.  Plus there was the symmetry thing, four models and fourth Amendment.  How could I not take a quick look.

It started out a little slow.  A bit jargonistic, using that scholarly affectation that makes lawyers wonder why academics can’t just say what they mean in the first place.  But Orin caught me with his frank discussion of Supreme Court 4th Amendment jurisprudence. 

Among scholars, this state of affairs is widely considered an embarrassment. The Court’s handiwork has been condemned as “distressingly unmanageable,” “unstable,” and “a series of inconsistent and bizarre results that [the Court] has left entirely undefended.” Treatises and casebooks struggle to explain the test. Most simply announce the outcomes in the Supreme Court’s cases, and some suggest that the only way to identify was an expectation of privacy is reasonable is when five Justices say so. The consensus among scholars is that the Supreme Court’s “reasonable expectation of privacy” cases are a failure.

See, already we agree on something.  This was going swimmingly.

Up to now, the Supremes have developed a bunch of rules and exceptions that apply to particular situations, together with a lot of words that give little if any guidance if one treads anywhere beyond the specifics of prior cases.  What they had not developed was a cogent means of deciding cases that lower courts, and police on the street, could follow to know whether they were violating the Constitution. 

By going through the caselaw, and the varying approaches used to justify the desired outcomes, Orin developed these four models:

• The Probabilistic Model


• The Private Facts Model


• The Positive Law Model


• The Policy Model

If you want a short explanation of what each of these models is, you’re going to have to read the 439 pages of explanations and examples that I went through.  (Only kidding, the explanations are only 47 pages).  They reflect three approaches to search and seizure cases that are dictated by the nature of the case and issue, and an overarching model that applies to all, and in the absence of any other viable theory. 

Here’s Orin’s overview:

The failure of any one test to consistently distinguish police practices needing Fourth Amendment regulation from those that do not has led to the mixed system that exists today. Although the courts speak of a single “reasonable expectation of privacy” test, the one label masks several distinct but coexisting approaches. Four approaches predominate, together reflecting four different models of Fourth Amendment protection. The first three rely on proxies. The probabilistic model considers the likelihood that the subject’s information would become known to others or the police. The lower the likelihood, the more likely it is that a reasonable expectation of privacy exists. The private facts model asks whether the government’s conduct reveals particularly private and personal information deserving of protection. This approach focuses on the information the government collects rather than how it is collected. The positive law model considers whether the government conduct interferes with property rights or other legal standards outside the Fourth Amendment. When courts apply the positive law model, an expectation of privacy becomes reasonable when it is backed by positive law such as trespass. The fourth and final model, the policy model, reflects the direct approach. Courts applying the policy model focus directly on whether the police practice should be regulated by the Fourth Amendment.

Reading through the lengthy explanations and discussions and examples and more discussions of the model, I was certain that this was going to prove to be a big circle that ultimately ended where it started, with a Supreme Court able to pick whatever model gave them the rationale to reach whatever result 5 justices wanted.  In other words, we would maintain a consistent 4th Amendment jurisprudence:  always result oriented.

Well, you could have knocked me over with a feather.  Orin, at the very last minute, pulled the entire discussion together to arrive at a fully conceived, cogent and (amazingly) viable method of applying the four models that would produce a consistent and explainable approach to search and seizure cases.  This way, lower courts would have a road map as to which approach was required by a particular fact pattern or scenario, and how that approach should be consistently executed.

Explicit recognition of the different models would help the process work more effectively. The Supreme Court’s Fourth Amendment decisions sometimes have a shotgun quality: the Justices use any model they can to justify the selected result. The Court should realize that when it applies the reasonable expectation of privacy test, it faces a critical choice as to which model or models to use. The Supreme Court’s choice of models in one case won’t bind future courts to the same choice; rather, the Court must always make a context-sensitive selection of which model to use to explain the Court’s result in a particular case. The Court should pick the model that in context best distinguishes less troublesome police practices that need not be regulated from more troublesome practices that are only reasonable when accompanied by a warrant or special circumstances. Furthermore, the Court’s choice of model should be as clear as possible. By choosing the model or models, the Court’s opinion will help frame the choice of models in analogous cases decided by the lower courts. To facilitate lower court decision making, Supreme Court opinions should pick models clearly.

Could this be the way to eliminate the zillion exceptions that retain the rubric but forget the rationale?  Would this force courts to stop their resort to knee-jerk rules to permit invasive conduct when a warrant could easily be obtained?  Could this restore meaning to search and seizure limitations that have been so long ignored that search warrants have been placed in museums?  Maybe.

As for cops, they would have a means (if they would bother to read or learn it) to know exactly when they were violating constitutional rights.  So at least when they did it from now on, they would know they did it.  It would be a shame to violate rights and not even get the enjoyment of knowing it, right?

Defense lawyers would find this approach interesting, in that the qualitative decisions of “reasonableness” that courts generally use to deny our suppression motions would be constrained to fit within a larger rule.  It may well produce a far more rational way of arguing search and seizure violations, and make it a little more difficult for courts to just yell “denied” to make us go away.  Of course, that would also depend on their bothering to read or learn it as well.  It might take a generation or two of judges before such a change would filter down to the trial courts.

If you are incline to give some serious thought to a very interesting, and surprisingly viable, way to deal with search and seizure decisions, this article has much to offer.  You can cruise through the middle, which is not intended for consumption by real people, and cut to the end where Orin tells you who killed Col. Mustard in the library with a search warrant.  It’s worth the read.

Update:  I just found out about Ken Lammers reviewof an earlier version of this article here.  His explanation of the four models is much more succinct than mine (which explains why he’s a prosecutor now), but I have to disagree with Ken’s point that the “positive facts” model is a subset of the “policy model.”  The former deals with the end product of the seizure, such as private diary, whereas the latter deals with the police conduct in seizing it.  As noted, the “policy model” is always an overarching concern.  But I agree with Orin that there are some things that, by their nature, demand a level of special protection and heightened scrutiny.  It would similar, to my mind, to the special protection afforded a residence, which has not become riddled with exceptions.  But of course, that’s my view because I’m a defense lawyer.