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Four Models of Fourth Amendment Protection:
I'm happy to say that my "four models" paper has been published: Four Models of Fourth Amendment Protection, 60 Stan. L. Rev. 503 (2007). I may do some blogging about this paper at some point, although I'm usually pretty bad at following up after I say things like that.
The Cabbage:
Its a shame that such an interesting topic is about to be lost next to a thread about "The Hobbit".
12.18.2007 5:46pm
BruceM (mail) (www):
Orin: Congrats on the publication.

I briefly skimmed it over (I will read it in detail later) but I think there is a Fifth Model, which I would call the "Preservation of Judicial Legitimacy Model." In a case where the defendant is very guilty of a very serious crime, courts have a vested interest in preserving their own legitimacy in not finding a 4th Amendment violation so as to need to suppress the evidence. "Judge Lets Child Rapist Go Free Based on Technicality" is always an annoying headline for a well-meaning, scholarly judge who tried to do the right thing to read. And there is potential backlash. Thus, based on the egregiousness of the crime, the obviousness of the guilt (which is usually clear when a 4th Amendment violation is asserted), and maybe the publicity of the case, the court will adopt any semi-plausible reason why there was no 4th Amendment violation.

4th Amendment jurisprudence is one of the few areas where both the litigants' interests and the interests of the court/judicial branch are implicated.

Maybe this goes more to why there is no consistant model of 4th Amendment protection moreso than actually amounting to a Fifth Model thereof. I'd have to think about that a bit.
12.18.2007 8:27pm
OrinKerr:
BruceM,

Sounds like your suggestion isn't so much a fifth model as it is a different argument about a different topic in Fourth Amendment law. This paper is about the reasonable expectation of privacy test, which is only a threshold showing in Fourth Amendment law. In contrast, you seem to be focused on the occasional inclination of judges to bend the rules to avoid a suppression remedy in individual cases.
12.18.2007 8:36pm
BruceM (mail) (www):
Orin: Yeah, you're probably right about it being a different issue. It's just that, at the end of the day, courts seem to decide whether a defendant's expectation of privacy was reasonable on a case by case basis, with several common grounds for concluding that the expectation was not objectively reasonable (those common grounds being your four Models, I would think). Since, like so many areas of the law, it all comes down to what is "reasonable" (whether objective or subjective), there is great latitude for result-oriented decisionmaking by a court.

I'm likely biased about how frequently courts come up with reasons, at all cost, against finding reasonable expectations of privacy in 4th Amendment cases because I practice in Texas, and the Texas Court of Criminal Appeals (CCA) (Texas's highest court for criminal cases) is notorious for siding with the state at all costs, particularly in 4th Amendment cases.

I challenge anyone to find one case where CCA Presiding Judge Sharon Keller (who recently got some negative publicity for closing the Court to prevent the last-minute filing of a motion to stay an execution) agreed with the defendant that he/she had a reasonable expectation of privacy, found a 4th Amendment violation, and agreed that evidence was properly or should have been suppressed. I can't recall it ever happening in all the years she's been on the court.

Anyway, it's easier and costs less (if zero) political capital for a court to say a defendant didn't have a reasonable expectation of privacy under the circumstances than to say the police acted improperly. I've always felt courts have a vested interest in 4th Amendment cases to find against the defendant, much moreso than in other areas of the law (even those that would help a defendant).
12.18.2007 9:43pm
Eli Rabett (www):
The existence of four models does not necessarily mean that there are not others. Hopefully it means that the four captured most of the instances
12.19.2007 9:12am