This Article considers the role of property rights in defining Fourth Amendment searches. Since United States v. Jones in 2012, the Supreme Court has relied on both privacy and property to determine whether a Fourth Amendment search has occurred. But recently, many of the Justices have expressed increasing skepticism about not only the effectiveness but also the appropriateness of safeguarding privacy. The 2018 case of Carpenter v. United States, which ruled that an individual’s cell site location information is protected under the Fourth Amendment, saw all four dissenters urging a larger role for property rights in the analysis of a search. Although they disagreed on exactly how much larger that role ought to be—from Justice Kennedy’s argument that property controls the existence of privacy to Justice Thomas’s property-only stance—the dissenters, together with the majority, seemed to assume that property rights were the central concern under the Fourth Amendment until 1967, when Katz v. United States was decided. This Article questions that assumption by first looking to the history leading up to the Amendment and the text of the Amendment itself, and then examining the Supreme Court’s search cases up to and including Katz. This detailed study of the development of the Fourth Amendment demonstrates that, in fact, property was never the primary, let alone the only, concern. From the beginning of the English protests against government searches in the sixteenth century to the Supreme Court’s twentieth-century cases, the Fourth Amendment was understood to safeguard multiple values, such as property, privacy, and freedom of thought and speech, among others. Accordingly, this Article argues that narrowing the search analysis to focus on property would actually constitute a departure from the past and a diminishment of what has long been conceived to be a broad personal right.
On the Broadness of the Fourth Amendment,
SMU L. Rev.