The Fourth Amendment's Hidden Intrusion Doctrine

Authors

Laura Ginsberg Abelson, Southern Methodist University, Dedman School of LawFollow

ORCID (Links to author’s additional scholarship at ORCID.org)

https://orcid.org/0009-0008-6808-6978

Abstract

The Fourth Amendment’s concept of probable cause is the linchpin of legal standards governing law enforcement actions such as arrests, searches, and seizures. This article challenges the assumption that the same quantum of evidence can meet the probable cause standard regardless of whether law enforcement seek to conduct a search, to seize evidence, or to make an arrest, and regardless of the intrusiveness of such search or seizure. This paper demonstrates that the Supreme Court implicitly considers the degree of intrusion into privacy or liberty, not just the quantum or quality of evidence, when determining whether probable cause exists. In doing so, I bring to light the Supreme Court’s “hidden intrusion doctrine.”

By failing to explicitly state that degree of intrusion is a factor in the probable cause analysis, the Supreme Court injects ambiguity that has many consequences. Some lower courts and law enforcement agencies already balance the quantum or quality of evidence with the severity of intrusion, even without explicit Supreme Court guidance, but others do not. The ambiguity in the doctrine therefore fosters inconsistency and expands police discretion. Moreover, as technological advancements reshape investigative techniques, from facial recognition to digital searches, the need for a clear articulation of the probable cause standard is increasingly urgent.

This article suggests both doctrinal and policy-based proposals that would bring the Supreme Court’s intrusion doctrine out of the shadows and require deliberate consideration of the degree of intrusion in probable cause determinations. Such an approach would preserve law enforcement flexibility while safeguarding individual rights amidst evolving technological landscapes.

Publication Title

Virginia Law Review

Document Type

Article

Keywords

Criminal procedure, Fourth Amendment, Law and technology

Recommended Citation

Laura Ginsberg Abelson, The Fourth Amendment’s Hidden Intrusion Doctrine, 111 Va. L. Rev. 1255 (2025)