STEREOTYPIFICATION OF THE FOURTH
AMENDMENT'S PUBLIC/PRIVATE
DISTINCTION: AN OPPORTUNITY
FOR CLARITY*
DONALD
R.C.
PONGRACE**
INTRODUCTION
The existence of a distinction between a public and a private
sphere of human activity is a central tenet of liberal democratic1 jurisprudence. 2 The boundary between the public and the private
spheres has always been a source of controversy. 3 Since the realist
movement in Americanjurisprudence in the 1930's, 4 the boundary's
ambiguity has become increasingly obvious. 5 In recent years the
Burger Court 6 has drastically narrowed the judicial definition of the
@ 1985 Donald R.C. Pongrace.
J.D. 1985, The Washington College of Law, The American University.
1. The term "liberal democracy" as used in this Article encompasses a political, social,
and economic philosophy that combines a Lockean attachment to liberty from the state with a
Rousseauesque belief in democracy and equality. See 4 THE ENCYCLOPEDIA OF PHiLOSOpHY 460
(MacMillan 1967).
2. See Mnookin, The Public/PivateDichotomy: Political Disagreement and Academic Repudiation, 130 U. PA. L. REv. 1429, 1429 (1982) (noting distinction between public and private
spheres based on liberal tenet relating to individual rights vis-a-vis government powers). For
a discussion of the origins and history of the public/private distinction, see Horwitz, The History of the Public/PivateDistinction, 130 U. PA. L. REv. 1423 (1982). See also infra notes 23-27 and
accompanying text (discussing role of public/private distinction in liberal democratic
ideology).
3. See Mnookin, supra note 2, at 1430-34 (discussing various definitions of dividing line
between public and private spheres).
4. For a general description of the realist challenge to formalism that began in the
1920's, see Mensch, The History of Mainstream Legal Thought, in THE PoLrrCs OF LAw: A PROGRESSIvE CRr9_UE 26-29 (D. Kairys ed. 1982).
5. For discussions of the current ambiguity surrounding the public/private distinction,
see Papersfrom the University of PennsylvaniaLaw Review on the Public/PrivateDistinction Held at the
University of Pennsylvania onJanuary20, 1982, 130 U. PA. L. RExv. 1289-1602 (1982) [hereinafter
cited as Public/PrivateSymposium]. As Professor Duncan Kennedy pointed out in the paper he
delivered at the symposium, "[w]hen people hold a symposium about a distinction, it seems
almost certain that they feel it is no longer a success. Either people can't tell how to divide
situations up between categories, or it no longer seems to make a difference on which side a
situation falls." Kennedy, The Stages ofDecline ofthe Public/PivateDistinction, 130 U. PA. L. REV.
1349, 1349 (1982).
6. Commentators use the term "Burger Court" to signify the conservative majority that
*
**
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[Vol. 84:1191
human activities that fall within the protected private sphere.7 This
sudden and extensive redefinition of the private sphere has led commentators to reexamine the legitimacy of the public/private
distinction.8
This Article examines the evolution of the ambiguity surrounding
the public/private distinction and focuses on the development of
the United States Supreme Court's fourth amendment doctrine.9
An examination of fourth amendment search and seizure doctrine is
a particularly appropriate vehicle for analyzing the decline of the
liberal democratic public/private distinction because both the rhetoric and the substance of fourth amendment doctrine graphically illustrate not only the distinction itself but also the distinction's
inherent manipulability. 10
currently dominates the United States Supreme Court. See Schwartz, Fifteen Years of the Burger
Court. 239 NATION 262 (1984) (describing Court's conservative trend since Warren Burger
started his first term as ChiefJustice in 1969); Comment, Cases That Shock the Conscience: Re/lections on Criticism of the Burger Court, 15 HARV. C.R. & C.L.L. REV. 715, 747-51 (1980) (identifying decisions between 1971 and 1980 as decisions of conservative Burger Court). This Article
uses 1971 as the starting date for the Burger Court era because in that year President Nixon
appointedjustice William H. Rehnquist to the Court and the Court underwent a radical transformation in its political viewpoint.
7. See, eg., Hudson v. Palmer, 104 S. Ct. 3194,3200 (1984) (holding that prisoners have
no legitimate expectation of privacy in their cells or in any personal belongings in their cells);
United States v. Knotts, 103 S. Ct. 1081, 1085 (1983) (holding that automobile traveler on
public thoroughfares has no reasonable expectation of privacy in movements from one place
to another); South Dakota v. Opperman, 428 U.S. 364, 367 (1976) (holding that individual
has no reasonable expectation of privacy in car impounded at police station).
The Burger Court has shrunk the private sphere in a variety of areas. See Comment, supra
note 6, at 716-19 (noting areas in which Court has reduced individual rights by removing
restrictions on exercise of government power). In the areas of procedural due process, substantive due process, and search and seizure, the Court's decisions have explicitly reduced the
limits of the private sphere by limiting the individual rights that define the sphere. Id. In
other areas, the Court's decisions have more subtly reduced the private sphere by eliminating
federal government regulation over other societal power centers, thereby allowing state and
local governments to shrink the private sphere. Id. Finally, the Burger Court has restricted
the exercise of individual and political rights by imposing procedural bariiers to the initiation
of rights claims. L.
8. See Mnookin, supra note 2, at 1440 (recognizing that scholars are questioning legitimacy of distinction). See generally Public/PivateSymposium, supra note 5 (discussing various aspects of controversy surrounding continued legitimacy of public/private distinction).
9. The fourth amendment to the Constitution provides:
The right of the people to be secure in their persons, houses, papers, and effects,
against unreasonable searches and seizures, shall not be violated, and no Warrants
shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
U.S. CONsT. amend. IV. This Article focuses solely on the development of search and seizure
doctrine in the decisions of the United States Supreme Court ignoring, for purposes of brevity and clarity, lower federal court decisions and state court decisions interpreting the fourth
amendment or its state equivalent.
10. Fourth amendment doctrine is particularly well suited for an examination of the public/private distinction because courts interpreting the doctrine explicitly refer to and rely on
the rhetoric of privacy. See, eg., United States v. Martinez-Fuerte, 428 U.S. 543, 554 (1976)
(holding that fourth amendment imposes limits on search and seizure power to prevent law
enforcement officials' arbitrary and oppressive interference with individuals' privacy and per-
1985]
FOURTH AMENDMENT
1193
Part I of this Article analyzes the theoretical foundations of the
public/private distinction in liberal democratic ideology. Part II discusses the evolution of fourth amendment doctrine, focusing on the
doctrine's traditional formalist foundations and its subsequent relativization after the realist movement in the 1930's. This discussion
illustrates the decline in the perceived legitimacy of the public/private distinction and clarifies the proposition that judicially
created law is as political as legislation."I The final section explores
possible responses to the conceptual analysis advanced in the Article. My argument is that this analysis is revelant only insofar as it
can affect our vision of law and our own moral strivings within the
legal system. If the law fails, as it must, to draw objective lines between the contradictory visions of personality embodied in fourth
amendment doctrine, then we must modify our conception of the
law.
I conclude by suggesting an application of these ideas to an area
that has been neglected as academically unfashionable-the judiciary's selection process. 12 My aim is not to politicize the legal forum,
as it is political already. Nor am I attempting to inject political desonal security); United States v. Ortiz, 422 U.S. 891, 895 (1975) (noting that fourth amendment's central concern is protection of individuals' privacy from official interference).
11. Legal philosophers have noted a distinction between the judicial and legislative
sources of law. See H.L.A. HART, THE CONCEPT OF LAW 121-32 (1961); R. UNGER, KNOWLEDGE
AND PorTIs 88-96 (1975). They have also generally considered legislative law to be the
political expression of general rules governing various categories of acts and persons. See R.
UNGER, supra, at 89. Recently, critical legal scholars, extending the philosophical conclusions
of the legal realists, have discussed at length the politics of law generally. See E. Mensch, The
History of Mainstream Legal Thought, in THE PoLmcs OF LAw: A PROGRESSIVE CRITIQUE, supra
note 4, at 26-29; Unger, The CriticalLegalStudiesAfMvement 96 HARv. L. REv. 563 (1983). Thus,
the significance of an examination of the decline in the public/private distinction lies not in its
demonstration of the political nature of law generally. Rather, the significance of such an
examination lies in its demonstration of the opportunity it presents to develop a more meaningful vision of what political law is.
12. The political importance of the judiciary's selection process has not been lost on
those outside the legal community. For example, as a result of certain procedural changes in
the selection and nomination process for federal judgeships, the Reagan Administration has
effectively reshaped the political composition of the federal bench. See Brownstein, With or
Without Supreme Court Changes, Reagan Will Reshape the FederalBench, 16 NAT'LJ. 2338 (Dec. 8,
1984) (asserting Reagan's most lasting impact will be his choices for lifetime seats on federal
judiciary); Goldman, Reagan'sJudicialAppointments at Mid-term: Reshaping the Bench in His Own
Image, 66JUDICATURE 334 (1983) (discussing Reagan appointments and presenting differences
between Reagan administration appointees and those of previous administration); see also
Goldman, ReaganiingtheJudiciary: The First Term Appointments, 68JuDxcArURE 313 (1985) (discussing Reagan's formation of President's Federal Judicial Selection Committee and other
procedural changes in judiciary selection and nomination process to use power ofjudicial
appointment to place on federal bench judge's sharing Reagan's general philosophy). The
effect that such a transformation in the political composition of the federal bench will have on
the future of American life is enormous, if as yet unexplored. For a discussion of the politics
surrounding the federaljudicial system, see S. GOLDMAN & S.JAHNIGE, THE FEDERAL COURTS
AS A POLrICA SYSTEM (3d ed. 1985); Evans, PoliticalInfluences in the Selection of FederalJudges,
1948 Wis. L. REv. 330, 330 (1948) (observing that appointments to federal judgeships have
historically been rewards for party patronage). For further discussion of President Reagan's
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THE AMERICAN UNIVERSITY LAW REVIEW
[Vol. 34:1191
bate into the courtroom. It is there already.13 Rather, by critically
examining and rejecting the conception of law as an objective mediation device between conflicting aspects of human nature, I am trying to develop a more meaningful vision of political law as a
language through which we express our competing visions of the
"good life." Our present vision concentrates on party patronage
before ajudge's selection and demands an impossible political neutrality, or "objectivity," thereafter. Instead, I suggest that we should
take seriously the idea that judges are social theorists. In so doing,
we should take account of the implications that this has not only for
the judicial decision process, but also for the judiciary's selection
process and for the representation on the bench of women, minorities, and members of the working class. Such a changed vision
would bring our practices in line with our precepts and thus help to
end the professional schizophrenia in which lawyers claim to the
world, but never to each other, that we are a society governed by
"laws and not men."
I.
THE THEORY AND FALLACY OF LIBERAL DEMOCRACY'S
PUBLIC/PRIVATE DISTINCTION
An accurate or convincing generalization about the essence of
human nature is as impossible to develop as a logically consistent
definition of law. 14 Two polarized conceptions of human nature
have developed from innumerable philosophical musings concerning the conundrum of human personality. One view perceives man
as essentially cooperative and communal.15 The other views man as
individualistic, self-interested, and in a state of undeclared war with
his fellow man. 16 The two political theories that dominate the world
stage, liberal democracy and socialism, are based on these two contrasting views of man's essential nature.
innovations in thejudiciary selection process, see Fowler, A Comparison ofInitial Recommendation
Procedures:JudidalSelection under Reagan and Carter, 1 YALE L. & Pol'y REv. 299 (1983).
13. See supra note 11.
14. Social philosophers' inability to define accurately the essence of human nature is, in
fact, one reason for legal philosophers' inability to define law. If law, in its very broadest
sense, represents an attempt to explain or shape human conduct, then failing to define the
basis for human conduct inevitably results in an inability to explain or shape it.
15. See P.A. KROPOTKIN, MUTUAL AID: A FACorTo oF EvoLUTION 81 (P. Avrich ed. 1972)
(stating that competition is not rule in mankind); Marx, On theJewish Question, in F. ENGELS &
K. MARx, THE MARx-ENGELS READER 44 (R. Tucker ed. 1972) (describing man's essential nature as communal and harmonious); see also L. KnRAn, THE ETHNOLOGICAL NOTEBOOKS OF
KARL MARX 58-76 (1972) (discussing Marx's views on community, collectivism, and individualism and comparing them to contemporary and subsequent views).
16. SecT. HOBBES, LEviTAN 185 (C.B. MacPherson ed. 1968) ("So that in the nature of
man, we find three principal causes of quarrel. First, Competition; Secondly, Diffidence;
Thirdly, Glory.").
1985]
FOURTH AMENDMENT
1195
These one-dimensional characterizations of human nature are
necessarily simplistic, and therefore unconvincing, because they fail
to account completely for the contextually contingent, chameleonlike quality of human personality.' 7 Political theorists analyzing liberal democracy or socialism, however, have attempted to overcome
this shortcoming of simplistic one-dimensionality by incorporating
other aspects of human personality into their theories as minor
strains, while attempting to maintain the primacy of the aspect originally espoused. 18 Socialist theory, for example, is based on a conception of man as instinctually communal and self-sacrificing.' 9
Socialist theorists have maintained this conception as the central
tenet of their work, while attempting to explain apparently self-serving aspects of human personality as the result of an inevitable cor20
ruption by the capitalist economic order.
Liberal democratic theory, on the other hand, views man as essentially individualistic, self-centered, and self-serving. 2 1 Liberal theorists have incorporated the communal and cooperative aspects of
human personality into their theory, but have relegated them to an
inferior position relative to the theorists' original atomistic conceptions of human nature. 22 To incorporate these contradictory conceptions of human personality in a logically consistent manner,
liberal democratic theory espouses a dichotomous view of a world
spheres of activity, each with its apdivided into public and private
23
propriate modes of behavior.
In the dichotomous liberal democratic world view, the universe of
human activity is divided into two separate categories of human con17.
Virginia Woolfdrew a more sophisticated and, consequently, more persuasive defini-
tion of human personality in To The Lighthouse. See J. GurovET, VIRGINIA WOOLF AND HER
WORxS 353-64 (1962). Woolfdid not consider human personality, in an individual or general
sense, to be fixed with immutable characteristics of any kind. Rather, she viewed and portrayed human personality as being continually shaped and remolded by the "shower of atoms" that strike on its consciousness. Id.
18. In all such arguments, the minor strain is a "dangerous supplement" to the major
one. The theoretical amalgam remains unstable despite the theorist's attempts to specify that
the proportions are 80/20. SeeJ. DERRIDA, ON GRMmATOLOGy 141-57 (G.G. Spivak trans.
1976).
19. See supra note 15 and accompanying text (discussing socialist conception of human
nature as communal and cooperative).
20. See L. KRADER, supra note 15, at 58-76 (reviewing socialist theorists' efforts to reconcile man's communal nature with his selfinterest).
21. See supra note 16 and accompanying text (discussing liberal democratic conception of
human nature as self-serving and competitive).
22.
See C. LASCH, HAVEN IN A HmRTLESS WORLD 38-39 (1977) (describing dichotomous
liberal democratic world view as one in which individual is "cold, hard, and unfeeling" in
public sphere, but seeks "response" in private [family] sphere).
28. See Mnookin, supra note 2, at 1429 (distinguishing between public and private
spheres of human activity).
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duct: the public sphere and the private sphere. 24 The private sphere
is that area of human activity presumptively outside the legitimate
bounds of government regulation or coercion. 25 As Justice Marshall
has noted, the private sphere is that area of "private autonomy
which government is bound to respect." 26 The individual regulates
the private sphere, which is confined to the individual and his immediate family and is characterized by the values emanating from the
communal and cooperative aspects of human character. 27 Conversely, the public sphere is that area of human activity that the government may legitimately regulate.28 In liberal democratic theory,
the public sphere is characterized by those values associated with
the traditional liberal democratic conception of man: self-interest,
hierarchy, and competition. 29 According to this view, government
regulation in the public sphere is essential because it brings order to
the otherwise chaotic competition between individual interests.8 0
The liberal democratic public/private distinction, therefore, describes separate and mutually exclusive spheres of human activity,
each of which is controlled by one aspect of human personality.8 '
This dissection of human nature into discrete aspects, and the relegation of these aspects to separate spheres of human activity, represents an attempt to restructure the traditional liberal democratic
one-dimensional view of man as a Hobbesian dwarf3 2 into a view of
man as a schizoid personality that is a combination of the Hobbesian
24. See, e.g., United States v. Knotts, 460 U.S. 276, 284 (1983) (discussing human activity
in terms of public and private spheres) (citing United States v. Knotts, 662 F.2d 515, 518 (8th
Cir. 1981)); United States v. Bailey, 628 F.2d 938, 941-43 (6th Cir. 1980) (noting distinction
between activity in public and private spheres).
25. See United States v. Lyons, 706 F.2d 321, 325 (D.C. Cir. 1983) (stating that private
sphere is that area of individual's life in which individual can reasonably expect that uninvited
and unauthorized individuals will not intrude); see also Mnookin, supra note 2, at 1429 (noting
that private sphere is presumptively outside governmental regulation or intrusion).
26. Pruneyard Shopping Center v. Robbins, 447 U.S. 74, 93 (1980) (Marshall, J.,
concurring).
27. See Gabel, The Mass Psychology of the New Federalism:How the Burger Court's PoliticalImagery Legitimizes the Privatizationof Everyday Life, 52 GEO. WASH. L. REv. 263, 268 (1984).
28. See Oliver v. United States, 104 S. Ct. 1735, 1741 (1984) (stating that government
may survey or regulate those activities that fourth amendment does not protect).
29. See supra note 16 and accompanying text (discussing liberal democratic conception of
human nature as self-serving and competitive); supra note 22 (discussing C. Lasch's description of public world as cold, hard, and unfeeling).
30. See T. HOBBES, supra note 16, at 223.
31. See C. LAscH, supra note 22, at 37-40 (discussing dichotomy between emotional expression in family life and repression of emotion in marketplace).
32. Dwarves do not figure prominently in Hobbes' writings. Because Hobbes described
life in the state of nature as nasty, brutish, and short, our seminar adopted the catch-phrase
"Hobbesian dwarf" to describe the person who Master Hobbes revealed. SeeT. HoBBES,supra
note 16, at 186.
1985]
FOURTH
AMENDMENT
1197
dwarf in the public sphere and Alan Alda 3 in the private sphere.3 4
As with all legal doctrines developed prior to the realist movement,
the public/private distinction was predicated on a conception of law
as certain, unchanging, and capable of expression in objectively
identifiable rules.3 5 Consequently, utilizing the doctrine to determine the appropriate parameters of governmental action, one supposedly has merely to examine the rules governing the spheres'
boundaries to determine whether a particular activity is public or
private.3 6 Because the conception of law under which the public/private distinction developed was one of objectively identifiable
rules, the determination of the sphere's boundaries is, according to
this conception, necessarily apolitical and nonpartisan.
The public/private distinction is vital to many areas of liberal
democratic jurisprudence, and is particularly important in liberal
democratic constitutional theory and interpretation.3 7 For example,
the concept of state action as a predicate to a determination of a
state constitutional violation aptly illustrates a judicial attempt to
define the proper contours of permissible government regulation of
human activity.3 8 The fourth amendment search and seizure doc33. Alan Alda, in his role of Hawkeye Pierce on the television show "M.A.S.H.," is tall,
sensitive, and unselfish. See 121 TIME 64 (1983).
34. This compartmentalization of human nature has several repressive effects. First, by
confining self-interested, competitive values to activities that "properly" fall within an
imagined public sphere, the dichotomous public/private distinction legitimates, perpetuates,
and encourages the exercise of those values. Consequently, the public/private distinction
necessitates the creation ofa limited government to regulate the exercise of those competitive
values within the public sphere. This development perpetuates the myth that reprehensible
self-interest is merely healthy competition when confined to the public sphere and regulated
by the government.
Second, the liberal democratic public/private distinction reinforces values of self-interest
by separating an integral society into discrete and isolated enclaves that are glorified under
the title of private life. This reinforcement unites society and limits individual willingness to
exercise the communal characteristics that the public/private distinction relegated to the private sphere.
Finally, the dichotomous liberal democratic view of the world allows societal anger created
by the hierarchical economic and social order to be deflected toward the state political system.
By presenting an anti-authority world view that sacrifices communal interests, such as effective
law enforcement, to the lofty ideals of individual privacy, the liberal democratic world view
provides a safety valve for the disenchantment created by its institutionalization of a hierarchical social and economic order. For further discussion of the legitimating effect of the public/private distinction, see Gabel, supra note 27, at 268 (stating that Court's purpose in
limiting private sphere is to legitimate current hierarchical system).
35. See Cohen, TranscendentalNonsence and the FunctionalApproach, 35 COLuM. L. REV.809,
821 (1938). See generally J. AUSTIN, THE PROVINCE OF JURISPRUDENCE DETERMINED (5th ed.
1885).
36. See, eg., Lochner v. New York, 195 U.S. 45 (1905) (holding state regulation of employee's working hours as invasion of private right to contract).
37. See cases and commentary cited infra note 38.
38. See Flagg Bros., Inc. v. Brooks, 436 U.S. 149, 165 (1978) (discussing state action
doctrine in terms of" 'essential dichotomy"' between public and private acts) (quotingJackson v. Metropolitan Edison Co., 419 U.S. 345, 349 (1974)); see also Brest, State Action and Liberal Theory: A Casenote on Flagg Brothers v. Brooks, 150 U. PA. L. REv. 1296, 1296 (1982) (noting
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THE AMERICAN UNIVERSITY LAW REVIEW [Vol. 34:1191
trine also illustrates ajudicial attempt to define the legitimate scope
of government regulation-an attempt to reconcile liberal democratic theory with the "fundamental contradiction" of human society, that to be free, one must subject oneself to others' control.39
The following section traces the development of fourth amendment doctrine from its formalist roots to its subsequent relativization after the realist movement of the 1930's. The section then
discusses the current theoretical chaos surrounding fourth. amendment doctrine. This inquiry provides convincing evidence that the
fourth amendment public/private distinction no longer legitimates
certain searches and seizures by the government. Although the section focuses on the inherent manipulability of fourth amendment
doctrine, it also illustrates the similar manipulability of any legal
doctrine. By exposing the essential political nature ofjudicial interpretation, this section provides the basis for a discussion in the final
section of how to use this decline in the law's perceived objectivity
to institute changes in the judiciary's selection process that will not
only help to restore the legitimacy of the judicial process, but also to
eliminate the doctrinal obfuscation that pervades most areas of the
law.
II.
FOURTH AMENDMENT DOCTRINE: AN EXAMPLE OF THE DECLINE
OF THE PUBLIC/PRIVATE DISTINCTION
A. Fourth Amendment and Formalism
The Supreme Court decided its first major fourth amendment
case in 1886 in Boyd v. United States.40 Prior to Boyd, the Court had
not used the fourth amendment as a basis for protecting individual
privacy rights. 4 1 The Court in Boyd defined fourth amendment priFlagg and discussing case in terms of public/private distinction); Friendly, The Public-Private
Penumbra-Fourteen Years Later, 130 U. PA. L. REv. 1289, 1290-91 (1982) (discussing public/private distinction solely in terms of its relation to state action doctrine). In addition to
state action, the public/private distinction is significant to a number of other legal doctrines
and determinations. See Stone, CorporateVices and Corporate Virtues: Do Public/PrivateDistinctions
Matter?, 130 U. PA. L. REv. 1441, 1441-42 (1982) (discussing various legal contexts in which
public/private distinction plays significant role, including first amendment, fifth amendment
takings, and search and seizure).
39. For a discussion of the "fundamental contradiction" and its significance to liberal
democratic theory, see Kennedy, The StructureofBlackstone s Commentaries, 28 BuFF. L. REV. 205,
211-17 (1979).
40. 116 U.S. 616 (1886).
41. Prior to Boyd, the Supreme Court had interpreted the fourth amendment in only five
cases. SeeExParlejackson, 96 U.S. 727, 733 (1877) (holding that fourth amendment's warrant
clause protects mailing of sealed letters and packages); Ex Parle Milligan, 71 U.S. (4 Wall.) 2,
19-20 (1866) (finding that fourth amendment not restraint upon war-making power of President); Murray's Lessee v. Hoboken Land Improvement Co., 59 U.S. (18 How.) 227, 239
1985]
FOURTH AMENDMENT
1199
vacy in terms of common law property principles. 42 In Boyd, the
Court considered the propriety of the government's search and
seizure of a criminal defendant's private commercial papers. 43 The
Court declared that the government could not seize or search a citizen's property if the government could not assert superior property
rights in that property, and it concluded that Boyd's indefeasible
property rights in his private papers placed the papers beyond the
reach of government agents.4
In the first major opinion interpreting the fourth amendment,
therefore, the Supreme Court tied the definition of the increasingly
important private sphere 45 to the common law of personal property.4 6 In determining the scope of the private sphere under this
(1855) (finding fourth amendment inapplicable to civil proceedings for recovery of debts);
Smith v. Maryland, 59 U.S. (18 How.) 59, 63 (1855) (refusing to extend fourth amendment to
state warrant process); Luther v. Borden, 48 U.S. (7 How.) 1, 45 (1849) (holding that martial
law could justify reasonable search of home).
The paucity of fourth amendment cases during the early history of the Republic was due
partially to the Supreme Court's lack ofjurisdiction to hear appeals from criminal cases prior
to 1891. See Act of March 3, 1891, ch. 517, 26 Stat. 826, 827 (1891) (first granting Supreme
Courtjurisdiction to hear appeals from "capital or otherwise infamous crimes"). Another factor behind the absence of fourth amendment interpretation during the nineteenth century
was the government's lack of statutory authority to appeal criminal cases prior to 1907. See
Note, Formalism, Legal Realism and Constitutionally Protected Privacy under the Fourth and Fifth
Amendments, 90 HARv. L. REv. 945, 952 n.42 (1977).
42. Boyd v. United States, 116 U.S. 616, 618 (1886).
43. Id In Boyd, the government initiated a forfeiture action against a shipper for allegedly importing thirty-five cases of plate glass without paying customs duties. Id. As part of its
case-in-chief, the government introduced an invoice into evidence that the government had
obtained with a statutorily authorized administrative subpoena. Id Reversing the trial court's
judgment, the Supreme Court held that the invoice was an item of personal property beyond
the scope of the government's reach under the fourth amendment. Id at 622. An equally
important ground for reversal was the Court's declaration that the use of unconstitutionally
seized evidence to convict a defendant violated the fifth amendment's prohibition against
compelled self-incrimination. Id at 630 ("In this regard, the Fourth and Fifth Amendments
run almost into each other.").
44. Id at 630. Significantly, the subpoena met the fourth amendment's dual procedural
requirements because there was probable cause to believe that the invoice was evidence of a
crime, and the subpoena included a reasonably particular description of the items requested
and their location, including the invoice in question. Ld. For the text of the fourth amendment, see supra note 9.
Unsatisfied by the subpoena's technical propriety, the Court considered the reasonability of
the search and seizure. Boyd v. United States, 116 U.S. 616, 622 (1886). The Court's inquiry
into the reasonability of the seizure represented the Court's consideration of the property
status of the items that the subpoena requested. Id
45. It is significant in this regard that the public/private distinction emerged as a central
tenet of liberal democratic jurisprudence during the same period that capitalism was rapidly
fueling the industrial revolution in America. See Horwitz, supra note 2, at 1424 (discussing link
between increase in importance of public/private distinction and rise of capitalism).
46. See Boyd v. United States, 116 U.S. 616, 627-30 (1886). In support of its holding, the
Court in Boyd quoted at length from Entick v. Carrington, 19 How. St. Tr. 1029 (1765), an
early English case in which the court had awarded damages to a criminal defendant for the
government's improper seizure of private papers. See Boyd v. United States, 116 U.S. 616, 62729 (1886). The following passages illustrate the extent to which the Supreme Court equated
the impenetrable boundaries of the private sphere with the common law definitions of personal property. For example, the Court stated that, "[t]he great end for which men entered
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property oriented definition of privacy, the Court in Boyd included
certain categories of property which, although privately owned,
were subject to reasonable government inspection or seizure. Thus,
in addition to government owned property in the strict sense, the
Court in Boyd alluded to privately owned contraband as property in
which the government could assert an interest superior to that of
the private citizen. 4 7 The Court also referred to the instrumentalities of a crime as being objects in which the government could assert
a superior property interest.48 The creative and extensive judicial
use of these two exceptions to the property oriented definition of
fourth amendment privacy eventually led to the logical disintegration of the definition itself. 4 9
Boyd's position as the leading Supreme Court case in fourth
amendment interpretation led subsequent Supreme Court panels to
adopt Boyd's property oriented definition of the private sphere. 5 0 In
into society was to secure their property. ... Papers are the owner's goods and chattels;
they are. . . so far from enduring a seizure, that they will hardly bear an inspection ...
kd. at 627-28 (quoting Entick v. Carrington, 19 How. St. Tr. 1029, 1066 (1765)).
Synthesizing such common law pronouncements with its own view of the limits of the private sphere, the Court in Boyd stated:
It is not the breaking of his doors, and the rummaging ofhis drawers, that constitutes
the essence of the offence; but it is the invasion of his indefeasible right of personal
security, personal liberty and private property, where that right has never been forfeited by his conviction of some public offence-it is the invasion of this sacred right
which underlies and constitutes the essence of Lord Camden's judgment [in Entick).
Id. at 630.
47. See Boyd v. United States, 116 U.S. 616, 623-24 (1886) (defining contraband as those
things that it is unlawful for a person to have in his possession). The government's superior
property interest in contraband evolved from the common law notion that thieves had no
interest in the fruits of their crimes. See Hufstedler, Invisible SearchesforIntangible Things: Regulation of GovernmentalInformation Gathering, 127 U. PA. L. REv. 1483, 1499 n.64 (1979) (explaining reasoning behind weight accorded government property interest in contraband).
48. See Boyd v. United States, 116 U.S. 616,624 (1886) (referring to "implements of gambling" as objects in which government has superior property interest). At common law, the
instrumentalities of a crime were deodand and subject to immediate forfeiture to the king. See
Hufstedler, supra note 47, at 1499 n.64 (explaining common law treatment of instrumentalities of crime).
49. Ste Hufstedler, supra note 47, at 1495 (tracing evolution of trespass doctrine and
cases narrowing Boyd).
50. See, e.g., Marron v. United States, 275 U.S. 192, 198 (1927) (holding that contraband
property may be seized contemporaneously with lawful arrest); Burdeau v. McDowell, 256
U.S. 465,467 (1921) (holding that government may use private papers as evidence if stolen by
private party); Weeks v. United States, 232 U.S. 383, 398 (1914) (holding that government
must return wrongfully seized private papers to owner).
The dissenters in two recent Supreme Court opinions revived Boyd's property oriented definition of the private sphere for purposes of their fourth amendment discussion. See Couch v.
United States, 409 U.S. 322, 348 n.5 (1973) (Marshall,J., dissenting) (disagreeing with majority's rejection of property oriented definition of private sphere); Warden v. Hayden, 387 U.S.
294, 318-19 (1967) (Douglas,J.., dissenting) (reviving Boyd's definition of private sphere, discussing private ownership rights and government property rights relative to contraband). To
reach the desired result in certain subsequent fourth amendment decisions, the Court occasionally manipulated the premises underlying the decision in Boyd See, e.g., Adams v. New
York, 192 U.S. 585, 596-98 (1904) (reaffirming Boyd rationale, but holding that court should
1985]
FOURTH AMENDMENT
1201
1921, the Supreme Court reaffirmed the rationale and holding of
the Boyd decision in Gouled v. United States.5 ' The Court maintained
that personal private property was absolutely beyond the reach or
scrutiny of government agents. 5 2 The Court in Gouled recognized,
as it had in Boyd, that technical or procedural compliance with the
fourth amendment's warrant requirement would not legitimate
seizures of private property that was neither contraband nor the instrumentality of a crime.5 3
The Court's affirmation in Gouled of the rationale and holding of
not exclude evidence seized during search on sole ground that police seizure violated Constitution if initial invasion of individual's home was properly authorized by court-issued warrant). The Court in Adams circumvented the Boyd decision's absolute bar to government
seizure of private property by creating an exception for procedurally proper seizures-an exception that the Court in Boyd explicitly rejected. Compare id. at 596 (holding that illegally
obtained evidence procured under illegal search warrant not necessarily inadmissible) with
Boyd v. United States, 116 U.S. 616, 618-19 (1886) (implying that subpoena's technical propriety would not legitimate otherwise unconstitutional search or seizure). Moreover, by advocating civil or criminal action against the offending officer as the proper remedy for
unconstitutional seizures of private property, theAdams opinion anticipated the recentjudicial
contraction of the exclusionary rule. See Adams v. New York, 192 U.S. 585, 596 (1904); see also
Hufstedler, supra note 47, at 1494 (notingAdams' appeal to critics of exclusionary rule). For a
discussion of recent cases narrowing the scope of the exclusionary rule, see infra note 90 and
accompanying text.
The Adams approach toward the admissibility of unconstitutionally seized evidence was
shorlived. In Weeks v. United States, 232 U.S. 383 (1914), the Court reaffirmed the principle
that a court should always exclude unconstitutionally seized evidence, thereby reestablishing
the bar to governmental intrusion into the private sphere that the Court had articulated in
Boyd See id. at 390 (declaring that fourth amendment's fundamental principle is that man's
home is his castle and should not be invaded by any general authority for search and seizure
of his papers); see also Steagald v. United States, 451 U.S. 204, 219 (1981) (describing home as
"castle or privilege" for residents and precluding warrantless search of third party home).
51. 255 U.S. 298 (1921). Gouled involved the admissibility of two sets of private papers
that the government seized from the defendant. Id at 303. The first set included papers that
government agents removed from the defendant's office without his knowledge. Id. The second set consisted of certain other private papers that the government obtained pursuant to
search warrants issued after the intitial unauthorized seizure of the first set of documents. Id.
52. Id at 305. The Court held that the surreptitious seizure was unconstitutional and
excluded those documents from evidence. Id at 305-06. In addition, the Court employed the
fourth amendment to deny admission of the papers that the government had seized pursuant
to a search warrant. Id at 309-13.
The Court rested its decision to exclude the papers obtained pursuant to the search warrant
squarely on the property principles enunciated in Boyd, stating:
[I]t is clear that, at common law and as a result of the Boyd and Weeks Cases, supra,
[search warrants] may not be used as a means of gaining access to a man's house or
office and papers solely for the purpose of making search (sic) to secure evidence to
be used against him in a criminal or penal proceeding, but that they may be resorted
to only when a primary right to such search and seizure may be found in the interest
which the public or the complainantmay have in the properly to be seized, or in the right to the
possessionof it, orwhen a validexercise of the policepower renderspossessionof the properly by the
accusedunlawful and provides that it may be taken.
Id at 309 (emphasis added).
53. Id The doctrine that mere evidence does not legitimate government searches and
seizures evolved after Gouled and absolutely prohibited the government from seizing any item
not identified as either the fruit or the instrumentality of a crime. See supra note 48 (discussing
common law rule granting government superior property interest in fruit or instrumentality
of crime).
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its earlier decision in Boyd represented a highpoint for the property
based definition of fourth amendment privacy. 54 Courts adhering to
such a conception of the private sphere considered the sphere to be
coterminous with an individual's common law property rights. 55 According to this definition, the parameters of the private sphere appeared to be defined objectively. Courts using this definitional
approach to determine the appropriate limits of the state's collective
power over the individual needed only to inquire whether the allegedly unreasonable search or seizure involved private property, and,
if so, whether the government could assert a paramount property
interest in the item as contraband or as an instrumentality of
crime.56
The formalistic conception of te private sphere was predicated
on traditional property principles. Modem methods of gaining access to the private sphere, such as wiretapping, 57 however,
presented courts with definitional problems that were not readily
answerable by reference to the traditional common law of property. 58 As courts struggled to categorize cases involving these
newer methods of intangible privacy invasions, the illusion of formalist objectivity in defining the private sphere gradually collapsed.
The crystalline premises of formalist fourth amendment doctrine
54. See Note, supra note 41, at 960 (stating that Gouled essentially completed structure of
formalist doctrine in area of fourth and fifth amendment privacy).
55. See supra note 50 (discussing cases adopting Boyd's property oriented definition of
private sphere).
56. See, e.g., Matthews v. Correa, 135 F.2d 534, 537 (2d Cir. 1943) (upholding seizure of
defendant's address books as instrumentality of crime); United States v. Best, 76 F. Supp.
857, 861-62 (D. Mass. 1948) (citing Gouled in admitting evidence of seizure of private papers
used in committing criminal offense).
57. See, e.g., Olmstead v. United States, 277 U.S. 438,445 (1928) (regarding exclusion of
wiretapping evidence). The Court in Olmstead refused to recognize a property interest in intangible conversations and, consequently, held that telephone conversations fall outside the
sphere of absolute constitutional protections that the Court enunciated in Boyd Id at 464-65.
Decisions following Olmstead adopted its mechanical approach toward consideration of technological invasions of privacy. See, e.g., Lopez v. United States, 373 U.S. 427, 438-39 (1963)
(stating that fourth amendment not violated where electronic device planted by lawful physical invasion of constitutionally protected area); On Lee v. United States, 843 U.S. 747, 753
(1952) (denying that use of electronic device constituted unlawful seizure); cf. Silverman v.
United States, 365 U.S. 505, 509-12 (1961) (electronic listening devices do not constitute
violation of fourth amendment, but fourth amendment violation occurs when installation entails unauthorized invasion of constitutionally protected area). General dissatisfaction with
this mechanical approach led to the Court's final abandonment of the property oriented definition of privacy in Katz v. United States, 389 U.S. 347 (1967). See Hufstedler, supra note 47,
at 1495-97 (discussing problems with Olmstead's mechanical approach and conclusion that privacy should be extended to tangibles and intangibles).
58. See, e.g., United States v. Hanna, 260 F. Supp. 430,434 (S.D. Fla. 1966) (monitoring
individual's telephone calls did not constitute invasion of individual's privacy for fourth
amendment purposes); United States v. Beckley, 259 F. Supp. 567, 571 (N.D. Ga. 1965) (in.
tercepting telephonic messages without trespass to defendant's property did not constitute
search); cf United States v. Miller, 425 U.S. 435, 441-43 (1976) (stating that technology can
only detract from one's justified expectation of privacy).
1985]
FOURTH AmE NDMENT
1203
gave way to the more openly subjective, relativistic, and indeterminate premises that characterize the current Court's definition of
privacy.5
B.
9
Modem Fourth Amendment Doctrine: Legal Realism and the R4ection
of ConstitutionalAbsolutes
During the 1930's, legal realism, which justified government action by analyzing it in terms of the maximization of overall benefits
to society, began to displace the formalist structure of constitutional
absolutes predicated on common law property concepts. 60 In terms
of fourth amendment doctrine, legal realists advocated a jurisprudential shift that would afford fourth amendment protections beyond those predicated on property principles if such additional
protections produced a net gain to society.6 1 The realist influence
on the fourth amendment doctrine initially resulted in narrow interpretations of the "mere evidence" 6 2 restrictions of the Boyd and
Gouled decisions without an explicit rejection of the property oriented, absolutist definition of privacy that underlay those
63
decisions.
The Supreme Court narrowed the Boyd-Gouled definition of the
private sphere in a series of decisions that expanded the scope of
"instrumentalities of a crime. '" By broadly defining instrumentalities of a crime, the Court granted lower courts the discretion to ad-
mit virtually any evidence seized as a result of a governmental
intrusion on an individual's privacy. 65 The technical propriety of
59. See, eg., Roaden v. Kentucky, 413 U.S. 496, 501 (1973) (search that is reasonable in
one setting as to one kind of material may be unreasonable in different setting or with respect
to another kind of material).
60. See Mensch, supra note 4, at 26-29 (discussing realist opposition to highly conceptualized classical legal structure).
61. See Note, supra note 41, at 964-67 (discussing rise ofjurisprudential theoryjustifying
government for greater societal good and displacing formalist structure that exaggerated importance of individual rights).
62. The "mere evidence" rule is another name for the rule limiting an investigating officer's searches or seizures to instrumentalities and contraband. See Gouled v. United States,
255 U.S. 298, 309 (1921) (quoting Boyd v. United States, 116 U.S. 616, 623-24 (1886), in
discussion of mere evidence rule). According to this negative formulation of the Boyd-Gonled
rule, an investigating officer could not seize mere evidence; he could only seize instrumentalities or fruits of crime. Id.
63. See Note, The Life and Times of Boyd v. United States, 1886-1976, 76 MICH. L. REV.
184, 190-96 (1977) (discussing protectionist era of Boyd-Coued and subsequent privacy
revolution).
64. See, 4g., Abel v. United States, 362 U.S. 217, 238 (1960) (holding that forged birth
certificate was means of committing espionage); Harris v. United States, 331 U.S. 145, 154
(1947) (declaring that forged draft cards were means of committing violation of Selective
Service Act); Marron v. United States, 275 U.S. 192, 199 (1927) (holding that business ledger
and utility bills were means of operating illegal bar).
65. See, eg., United States v. Guido, 251 F.2d 1, 5 (7th Cir.) (identifying shoes worn by
bank robber as instrument of crime because they were necessary for robber's escape), cert.
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the search leading to the discovery of the seized or searched item
replaced the property status of the item as the limiting factor on the
admissibility of evidence. 66 This approach gutted the formalist definition of the private sphere, while leaving its doctrinal shell intact.
Fourth amendment doctrine suffered from this attempt to mold
circumstantially determined value judgments concerning the appropriate limits of the private sphere to the terminology of mere evidence. 67 In 1967, the Supreme Court finally abandoned the
terminological confines of the mere evidence doctrine in its decision
in Warden v. Hayden.68 The Court then attempted to articulate a new
definition of the private sphere in the case of Katz v. United States.6 9
In Katz, a wiretapping case, the Court attempted to establish an
objectively determinable definition of the privacies of life that would
be sufficiently flexible to encompass legal realism's rejection of constitutional absolutes.70 Consequently, the new definition of the private sphere that the Court set forth in Katz characterized the
activities that constitute the private aspects of life and delineated the
parameters of legitimate government intrusions on private affairs.71
The Court in Katz defined the privacies of life as those areas of
human conduct in which an individual has a reasonable expectation
denied, 356 U.S. 950 (1958); United States v. Pardo-Bolland, 229 F. Supp. 473, 476 (S.D.N.Y.
1964) (characterizing passport, traveler's checks, wallet containing currency and checkbooks
as instrumentalities of narcotics offense).
66. See United States v. Poller, 43 F.2d 911, 914 (2d Cir. 1930) (rationalizing courts' new
approach to mere evidence rule and stating that if search is permitted at all, it does not matter
what is taken away).
67. See Newton, The Mere Evidence Rule: Doctrine or Dogma?, 45 T.x. L. Rev. 526, 529
(1967) (criticizing federal and state courts' ritualistic invocation of mere evidence rule);
LaFave, Search and Seizurc "The Course of True Law.. . Has Not... Run Smooth," 1966 U. ILL.
L.F. 255, 255 (1966) (decrying inability of reasonable men to agree on parameters ofreasonable search); see also Chapman v. United States, 365 U.S. 610, 618 (1961) (Frankfurter, J.,
concurring) (stating that course of search and seizure law "has not-to put it mildly-run
smooth").
68. 387 U.S. 294 (1967). In Hayden, the Court considered the propriety ofa warrantless
police seizure of certain items of clothing that did not fall within Gouled's definition of instrumentality or contraband, and therefore, constituted inadmissible mere evidence. Ik at 306.
The Court concluded that "the premise that property interests control the right of the Government to search and seize ha[d] been discredited." Id at 304. The Court went on to state
that, "privacy would be just as well served by a restriction on search to the even-numbered
days of the month. . . . [ajnd it would have the extra advantage of avoiding hair-splitting
questions ...
." Id at 309 (quoting Kaplan, Search and Seizure.A No-Man'sLand in the Criminal
Law, 49 CAL. L. REv. 474, 479 (1961)).
69. 389 U.S. 347 (1967).
70. See id at 361 (Harlan, J., concurring) (noting that for fourth amendment to protect
individual's privacy expectation, individual must have exhibited actual, subjective expectation
of privacy and that expectation must be one that society is willing to recognize as reasonable);
see also Amsterdam, Persptclives on the FourthAmendment, 58 MINN. L. REv. 349, 385 (1974) (stating that Katz "decision was written to resist captivation in any formula").
71. See Katz v. United States, 389 U.S. 347, 360-61 (1967) (Harlan,J., concurring) (questioning not only what fourth amendment protects, but also when it affords protection).
1985]
FOURTH AMENDMENT
1205
of privacy. 72 The Court avoided formulation of a formalistic definition of privacy by basing its determination of whether a legitimate
expectation of privacy existed on an examination of the circumstances surrounding an allegedly unconstitutional intrusion.73 The
Court, however, implied that certain objectively determinable and
inviolable zones of privacy did exist despite their contextual contingency. 74 The Court stated that the government could intrude on an
individual's legitimate expectation of privacy only if the intrusion
was, or could have been, 75 properly authorized 76 and if the intrusion
could be no greater "than was necessary under the circumstances." 77 In redefining the fourth amendment sphere of privacy,
the Court in Katz not only made the boundaries of the private
sphere dependent on the particular circumstances in which an intrusion occurred, but also relativized the protections that the private
sphere afforded to activities within the sphere.
Commentators applauded the Katz decision as significantly expanding the scope of the fourth amendment's protections. 7
Although the decision in Katz is probably a landmark in fourth
amendment doctrine, such a status should not rest solely on a somewhat simplistic characterization of its contribution to fourth amendment jurisprudence. Ultimately, the Court in Katz abandoned a
property oriented, formalistic definition of fourth amendment privacy and replaced it with a relativistic definition characterized by the
now familiar balancing approach used to protect privacy rights. 79
72. Id.
73. Id.
74. Ik at 357 (stating that searches conducted outsidejudicial process are per se unreasonable, subject only to few specifically established and well delineated exceptions); id at 359
(stating that wherever "man may be, he is entitled to know that he will remain free from
unreasonable searches and seizures").
75. Id at 359. The Court was referring to the variety ofjudicial exceptions to the fourth
amendment's requirement that government intrusions on an individual's privacy bejudicially
authorized prior to the intrusion. See C. WHrrEBREAD, CIMINAL PROCEDURE § 4.03(c) (1980)
(listing exceptions).
76. See Katz v. United States, 389 U.S. 347,357 (1967). The Court was referring to either
a judicially authorized warrant or subpoena, or a legislatively authorized administrative
subpoena.
77. Id. at 355 (quoting Berger v. New York, 388 U.S. 41, 57 (1967)).
78. See, e.g., Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 385
(1974) (indicating that effect of Katz is expansion rather than reconstruction of boundaries of
fourth amendment protection); Kitch, Katz v. United States, The Limits of the FourthAmendment,
1968 Sup. CT. REv. 133, 133 (1968) (stating that Katz finally cut fourth amendment doctrine
loose from moorings of precedent, allowing courts to determine its scope by logic of fourth
amendment's central concepts).
79. See, e.g., Oliver v. United States, 104 S. Ct. 1735, 1741 (1984) (stating that courts
determining reasonability of individual's claimed expectation of privacy must balance following factors equally: intention of fourth amendment Framers; uses to which individual has put
location; and societal understanding); Rakas v. Illinois, 439 U.S. 128, 152-53 (1978) (in determining reasonableness of asserted privacy expectations, courts should balarice many factors
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The decision in Katz, therefore, constitutes a dear dividing line, albeit tardily established, between formalist and realist fourth amendment doctrine. s 0 Although the rhetoric of the opinion in Katz
evokes images similar to those enunciated by the Court in its opinion in Boyd, the rationales of the two opinions are disparate and
incomparable.
Initially, the Warren Court's8 ' manipulation of its relativistic definition of fourth amendment privacy significantly expanded the areas
of human activity protected by the fourth amendment.8 2 This expansion of fourth amendment privacy initially deflected criticism of
the philosophically "open"8 3 nature of the Katz definition of privacy.
The open nature of the Katz definition of privacy, however, could be
discerned even during the Warren Court era by juxtaposing the
Court's approach to cases involving alleged fourth amendment violations in the criminal context against cases involving alleged fourth
amendment violations in the administrative context. In fourth
amendment cases arising in the context of administrative investigations, the Warren Court gave great weight to the government's regulatory interests and allowed governmental intrusions into
concededly private areas of individual activity.
4
Conversely, in
fourth amendment cases arising in the criminal context, the Warren
with no single determinative factor); see also Terry v. Ohio, 392 U.S. 1, 20 (1967) (emphasizing
that court considering reasonableness of privacy expectation must balance need to search
against invasion that search entails) (quoting Camara v. Municipal Court, 387 U.S. 523, 53637 (1967)).
80. The time lapse between the realist movement in the 1930's and the incorporation of
the realists' philosophical conclusions in a Supreme Court opinion suggests that an interesting and important study could be made of this lapse in general, notjust in fourth amendment
doctrine, that would have implications both on the nature of precedent and the effect that
legal theory has on the outcome of cases.
81. As used in this Article, the term "Warren Court" refers to the period from Chief
Justice Earl Warren's appointment in 1953 to the time ofJustice Rehnquist's appointment to
the Court in 1971.
82. See, e.g., Coolidge v. New Hampshire, 403 U.S. 443, 460 (1971) (absent exigent circumstances, search and seizure of automobile without warrant is unconstitutional); Chimel v.
California, 395 U.S. 752, 768 (1969) (restricting permissible scope of searches incident to
arrest to area within arrestee's control); Davis v. Mississippi, 394 U.S. 721,724 (1969) (finding
illegally seized evidence inadmissible at criminal trial, regardless of relevance and trustworthiness of seized item); Mancusi v. DeForte, 392 U.S. 364, 367 (1968) (holding that one can
object to government search of one's office as well as one's home).
83. By philosophically "open" I mean simply that the Katz definition of privacy is easier
to criticize as manipulable than the formalist property oriented definition that the Court
enunciated in Boyd in as much as the Katz definition openly incorporates relativity.
84. See, e.g., Colonnade Catering Corp. v. United States, 397 U.S. 72, 76 (1970) (holding
government search of liquor store without consent or warrant valid because Congress had
declared reasonability of such searches); See v. City of Seattle, 387 U.S. 541,545 (1967) (measuring administrative agency's demand for access to commercial property for inspection program against flexible standard of reasonableness recognizing public need for effective law
enforcement); see also Camara v. Municipal Court, 387 U.S. 523, 534-35 (1967) (in applying
standard court must focus initially on government interest that allegedlyjustifies official intrusion upon constitutionally protected interests).
1985]
FOURTH AMENDMENT
1207
Court emphasized the individual defendant's privacy interest and
prevented governmental intrusions despite the defendant's conceded guilt.8 5 These cases may or may not be politically palatable.
Their diametrically opposed results, however, indicate the inherent
manipulability of the relativistic balancing approach, or of any approach, to fourth amendment privacy.
Since the beginning of the Burger Court era, and with increasing
frequency in recent years, the Court has tended to restrict the scope
of those areas of human activity that are presumptively protected
from governmental intrusion. Thus, the Burger Court has declared
that: prisoners are not entitled to fourth amendment protections,8 6
that individuals have no legitimate expectation of privacy in open
fields that abut their homes,8 7 that drivers have no reason to expect
that dosed containers in their automobiles are protected from unreasonable government inspection,8 8 and that persons travelling in
an automobile on a public thoroughfare have no reasonable expectation of privacy in their movements from one place to another.8 9
Similarly, the Court has expanded the number of exceptions to the
exclusionary rule,90 while simultaneously easing the requirements
for the issuance of warrants, 9 1 thereby further expanding the scope
of permissible evidence generating intrusions into an individual's
activities. Significantly, the Court has not sought in any of these decisions to reinstitute explicitly a formalist approach to the adjudica85. See, e.g., Chimel v. California, 395 U.S. 752, 768 (1969) (delineating in criminal context scope of unreasonable search under fourth and fourteenth amendments); Davis v. Missis-
sippi, 394 U.S. 721, 726 (1969) (finding defendant's unlawful detention rendered his
subsequent fingerprinting violation of fourth and fourteenth amendments); Mancusi v. DeForte, 392 U.S. 364, 372 (1968) (holding search of defendant's office unreasonable within
meaning of fourth amendment).
86. See Hudson v. Palmer, 104 S. Ct. 3194, 3200 (1984) (holding that fourth amendment
proscription against unreasonable searches does not apply within confines of prison cell).
87.
See United States v. Oliver, 104 S. Ct. 1735, 1740 (1984) (holding governmental in-
trusion on open fields not unreasonable search).
88. See United States v. Ross, 456 U.S. 798, 824 (1982) (finding scope of warrantless
search of automobile not defined by nature of container hiding contraband but by object of
search and place in which probable cause exists).
89. See United States v. Knotts, 460 U.S. 276,281-82 (1983) (finding that motorists moving from one place to another have no reasonable expectation of privacy).
90. See, e.g., Massachusetts v. Sheppard, 104 S. Ct. 3424, 3429-30 (1984) (holding that
exclusionary rule does not require suppression of evidence seized pursuant to technically defective warrant); United States v. Leon, 104 S. Ct. 3405, 3423 (1984) (adopting good faith
exception to exclusionary rule to admit evidence discovered pursuant to invalid search warrant on ground that police believed that magistrate had validly issued warrant); Nix v. Williams, 104 S. Ct. 2501, 2509 (1984) (holding that evidence illegally obtained through violation
of individual's constitutional rights may still be admissible if evidence would have ultimately
or inevitably been discovered by lawful means).
91. See Illinois v. Gates, 462 U.S. 213, 230-41 (1983) (adopting totality ofcircumstances
test for determining sufficiency of probable cause and allowing for use of hearsay evidence in
probable cause determination).
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AMERICAN UNIVERSrIY LAW REVIEW
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tion of the "fundamental contradiction of human sodety." 9 2
Ironically, in severely restricting the definition of the private sphere,
the Burger Court has preferred to rely on the relativistic balancing
approach to the adjudication of fourth amendment claims that the
Warren Court established in Katz. 93 Commentators on the relativization of fourth amendment privacy have not reacted uniformly
to the Burger Court's recent restrictions of fourth amendment privacy. Some commentators have harshly criticized the Burger Court
'9 4
for its fourth amendment decisions that "shock the conscience.
Other, more conservative commentators have approved of the results of these decisions, reserving judgment on the Court's methods. 95 Putting political viewpoint aside, for the moment, most
commentators have recognized that regardless of the political palatability of recent decisions, fourth amendment doctrine is in a state
of theoretical chaos that belies its supposed objective legitimation of
governmental intrusions into our "private affairs." Thus, it is predictable and understandable that judicial invocation of the public/private distinction no longer persuades either the legal
community or the public at large that there is an objective "legal"
basis for the Court's conclusions.
Professor Duncan Kennedy has described the various stages in the
decline of a legal distinction in a way that helps one to understand
the current status of the public/private distinction in fourth amend92. See supra note 39 and accompanying text (discussing fundamental contradiction).
93. See supra note 79 and accompanying text (discussing Court's balancing test for determining reasonability of individual's expectation of privacy). Certain commentators have
harsbly criticized the Burger Court for allegedly manipulating the fourth amendment and
restricting fourth amendment privacy in cases that "shock the conscience." See Comment,
supra note 6 (analyzing 25 recent cases that shock the conscience); see also Morrison, Rights
Without Remedies: The Burger Court Takes the FederalCourts Out of the Business of ProtectingFederal
Rights, 30 RUTGERS L. Rv. 841, 841 (1977) (stating appointment of Burger heralded sharp
reversal of federal court's willingness to afford protection against intrusions on constitutional
rights); Neuborne, The ProceduralAssault on the Warren Legacy: A Study in Repeal by Indirection, 5
HoFsrRA L. REv. 545, 545 (1977) (noting Burger Court's practice ofindirectly attacking Warren Court precedents by dismantling structure of bench and bar necessary to implement
them); Dorsen, The Court of Some Resort, I Cry. LIB. R v. 82, 99 (1974) (criticizing generally
restrictive pattern of Burger Court's search and seizure decisions). Such criticism ignores the
watershed embodied in theKatz opinion, which is the establishment of an openly relativistic
and inherently manipulable definition of the private sphere. The fourth amendment doctrine's manipulability cannot be discredited simply because the ends achieved through such
manipulation are no longer politically palatable to the critic. Unmasking political manipulation in legal reasoning cannot effectively serve as a basis for persuasive criticism by itself.
94. See supra note 93.
95. See, e.g., Loewy, Protecting Citizensfrom Cops and Crooks: An Assusent of the Supreme
Court'r Interpretationof the FourthAmendment during the 1982 Term, 62 N.C.L. Rav. 329, 330-31
(noting that Court's fourth amendment decisions have protected innocent citizens from criminal activity); Note, Illinois v. Gates, A Flightfrom Analysis or the Path to Practicality,20 IDao L.
REv. 157, 170-71 (1984) (arguing that Gates decision marked return to practical, common
sense approach to fourth amendment jurisprudence).
1985]
FOURTH AMENDMENT
1209
ment doctrine. 96 Professor Kennedy asserts that there are six stages
in a distinction's decline: a stage in which there are hard cases with
large stakes; 97 the development of intermediate terms;98 collapse; 99
continuumization; 0 0° stereotypification;' 0° and, loopification. 10 2 The
fourth amendment public/private distinction collapsed in 1967
when the Supreme Court in Katz explicitly rejected common law
property principles as an absolute definition of the fourth amendment private sphere. 0 3 Continuumization followed as the Court
struggled to identify and balance society's conflicting interests in
law enforcement and privacy. Countervailing factors emerged in
Supreme Court opinions to justify the intended result. These factors were not consistent. For example, the importance of a seized or
searched item's property status often fluctuated significantly from
case to case.104
The false objectivity of the fourth amendment balancing test became apparent as the Burger Court shifted the previous Court's hierarchy of values to reflect the new Court's changed political
viewpoint. The fact that this shift occurred within a relatively short
time period undermined any superficial credibility that the balancing test might have commanded if the shift in the Court's political
viewpoint had occurred over a longer period of time. The fourth
amendment public/private distinction moved quickly into the stere96. See Kennedy, supra note 5, at 1349.
97. Id: at 1350. According to Kennedy, this stage involves cases with large stakes about
which people disagree passionately. Id
98. Id at 1351. Kennedy states that the development of intermediate terms between the
poles of the distinction indicates a formal recognition that some situations share some characteristics of each pole, thereby eliminating the previous all or nothing aspect of the distinction.
Id
99. Id. at 1351-52. The stage of collapse entails recognition of the fact that the distinction is incoherent because application of the distinction results in utter confusion; the objects
the distinction intends to distinguish actually share characteristics that the distinction considers peculiar to one pole or another.
100. Id at 1352-53. Throughout the continuumization stage, people do not see most entities (institutions, actors, actions) as absolutely one thing or another. Id at 1352. Furthermore, they do not reserve this status for a small class of intermediate terms, or collapse
everything into one pole or another. Id
101. Id at 1353-54. Stereotypification involves the dissolution rather than the collapse of
distinctions. Id At this point, one works out the practical implications of collapse. Id
102. Id at 1354-55. At this stage, the two poles of the distinction become so recognizably
similar that they become indistinguishable. Id
103. See supra notes 70-79 and accompanying text (discussing rationale, holding, and effect of decision in Katz).
104. Compare, eg., United States v. Oliver, 104 S. Ct. 1735, 1743 (1984) (citing existence of
property right as only one element in determining whether privacy expectations are legitimate) with Rakas v. Illinois, 439 U.S. 128, 153 (1978) (recognizing significance of property
rights and considering such rights in determining reasonableness of individual's privacy expectations). Cf. id at 156-57 (White, J., dissenting) (stating that majority's opinion in Rahas
effectively ties fourth amendment privacy to property law concepts).
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[Vol. 34:1191
otypification stage, where it remains today.' 0 5 Current legal argument about the fourth amendment public/private distinction
"seems a mere exercise: we can do it so well we can't believe in it
any more."10 6 The distinction's failure to distinguish credibly between the public and private sphere indicates a logical bankruptcy
that is impossible to overlook.
Why is the distinction logically bankrupt? More importantly, perhaps, what implications does this bankruptcy have? The answer to
the first question is tied to the notion that the distinction embodies
two conflicting conceptions of human nature: two convincing, but
incompatible visions of the good life. The public/private distinction
presses the law into service as a mediator between these two visions,
but after the collapse of the idea that law is objectively identifiable,
law's mediating role cannot be sustained.
The answer to the second question (what do we do now?) is suggested by the answer to the first. The final section of this Article
pursues this second question by working out possible reactions to
the conceptual argument advanced thus far. At the same time, it
raises some questions about a strand of legal realist thought that
subsequent commentators have ignored: the politics of the judiciary.' 0 7 The aim of this final section is to show that the conceptual
arguments are important precisely to the extent that they can provide the theoretical background to some concrete moral and political struggle. Thejudicial selection procedures provide an example
ofjust such a struggle. 0 8
105. Kennedy suggests that we have moved beyond stereotypification and into loopification. See Kennedy, supra note 5, at 1354. I cannot differentiate between these two stages. See
supra notes 101 & 102 (describing individual stages). If by loopification Kennedy means that
the mechanical manipulation of pro-con arguments actually becomes a part of the distinction
itself, then the author does not suggest that the public/private distinction has reached that
stage. The importance of this discussion, however, lies not in the resolution of semantic questions as to the present status of the public/private distinction on the Kennedy spectrum.
Rather, the significance of this discussion lies with its illumination of the alternatives for social
change presented by the decline of the public/private distinction.
106. Kennedy, supra note 5, at 1854.
107. See Cohen, supra note 35, at 845-46 (observing that knowledge of a judge's prior
experience is useful to practicing lawyers). As early as 1988, Professor Cohen called for the
development of a Judicial Index showing the political, economic, and professional background and activities of all judges. Id at 46. Recently, just such a work was published. See
DORN=I-r & CROss, FEDERALJUDICIARY ALMANAC (1984).
108. By predicatingmy discussion of the politics of law on conceptual analysis, rather than
on charges of social determinism in thejudiciary, I have attempted to avoid the pejorative
label of "breakfast jurisprudence" - defining law as an expression of the judge's eating habits - and to develop a vision of law that rejects rather than resolves the dilemma posed by the
precept that we are a society governed by "laws not men."
FOURTH AMENDMENT
1985]
I.
So WHAT? POSSIBLE
1211
REACTIONS TO THE DECLINE
OF THE PUBLIC/PRIVATE DISTINCrION IN FOURTH
AMENDMENT DOCTRINE
As noted earlier, commentators on the relativization of fourth
amendment privacy have not reacted uniformly to those recent
fourth amendment cases in which the Burger Court has tended to
shrink the legal definition of the private sphere.10 9 Commentators'
responses fall into two categories. Certain authors reject the relativistic approach entirely, arguing that courts cannot protect the private sphere adequately through inherently manipulable definitions
of its scope.110 These commentators advocate a reinstitution of absolute categories that would objectively establish inviolable zones of
privacy. One commentator would ensure the flexible objectivity essential to the new formalist approaches by linking the definition of
privacy to the social sciences; 1 11 another by linking the definition of
privacy to consensually defined values." 2 These commentators allege that the respective bases for their definitions of privacy would
be responsive to situational shifts. They predicate this conclusion
on an assumption that reification without stultification is possible
and preferable. Such an approach, however, to the recent decline in
the persuasiveness of the fourth amendment public/private distinction as an apologia for existing social and political hierarchies is
both incredible and illogical.1 1 s
Any response to politically unacceptable fourth amendment decisions that advocates the reinstitution of a formalist definition of privacy also ignores the main thrust of the last fifty years of
jurisprudential scholarship. The crux of the realist movement was
its rejection of legal absolutes as unworkable and illogical." 4 To
propose an acceptable formalist definition of privacy, one would
109.
For a discussion of the commentary on the Burger Court's record in the fourth
amendment area, see infra notes 110-13 and accompanying text.
110. See, e.g., Posner, Rethinhingthe FourthAmendment, 1981 Sup. CT. REv. 49, 53 (advocating appropriateness of relying on tort remedies to enforce fourth amendment); Hufstedler,
supra note 47, at 1520 (suggesting that first step in creating adequate fourth amendment jurisprudence is recognition of need for zones of individual privacy that government cannot penetrate); Note, supra note 41, at 979-85 (discussing inadequacy of relativistic protections for
fourth amendment privacy).
111. See Posner, supra note 110, at 50 (discussing economic approach to fourth amendment issues).
112. See Hufstedler, supra note 47, at 1520 (noting that privacy has been essential to fill
some basic human needs); Note, supranote 41, at 987-88 (suggesting values of human dignity
and equality under the law as basis of right to privacy values).
113. For further discussion of the public/private distinction's legitimating effect on existing social and economic hierarchies, see supra note 33.
114. See supra note 60 and accompanying text (noting realist rejection of constitutional
absolutes).
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34:1191
have to adapt it to the antithetical premises of realist jurisprudence.
The Court in Katz attempted to accomplish this when it announced
its manipulable definition of privacy." 5 The Burger Court's subsequent manipulation of the definition indicates that such a definition
simply reflects the political values of the persons responsible for interpreting the definition's limits." 8 As one commentator remarked,
once one has absorbed the premises of realism, one cannot reconstruct a credible formalism. 117
A second response that commentators have taken to the political
bias of recent Supreme Court decisions in the fourth amendment
area has been to embrace totally the relativistic definition of privacy
and to advocate its use as one would use any other political instrument to further acceptable political goals. 1 8 Advocates of this response have critically examined the political undertones of recent
Supreme Court opinions and attempted to isolate the means by
which the Court has masked its political aims." 9 These commentators suggest that by unmasking the Court's political aims and isolating methods of legal manipulation, one can coherently and properly
introduce political criticism of the Supreme Court's institutional and
social policy preferences into the legal forum. 120 Although this response to politically unacceptable fourth amendment decisions is
technically appealing as a means of furthering commonly shared values, it fails to exploit fully the opportunity presented to question the
underlying validity of the fundamental liberal democratic premise
that law is apolitical and objectively identifiable.'12
A third, more preferable response to the decline of the pub115. See supra note 70 and accompanying text (noting Court's attempt in Katz to reestablish flexible certainty in fourth amendment doctrine).
116. See supra notes 81-93 and accompanying text (discussing both Warren and Burger
Courts' manipulation of Katz relativistic definition of privacy).
117. See Mensch, supra note 4, at 29 (discussing attempts at modern reconstruction). The
reinstitution of a new system of legal absolutes designed to protect the individual from future
inroads on privacy by the present conservative Court also has its problems. Most significantly,
such an approach ignores the essential insight that the Burger Court's very rapacity in shrinking the definition of the private sphere has provided with regarding the decline of the public/private distinction and its continued validity. Any attempt to revitalize formalism to
protect the private sphere assumes that the public/private distinction is essential to our society and fails to question the anomaly that the distinction represents. For a discussion of the
anomaly presented by the public/private distinction and liberal ideology as a whole, see supra
notes 32-39 and accompanying text.
118. See Comment, supra note 6, at 747-51 (arguing that political manipulation and legal
reasoning are essentially coextensive).
119. Id at 715.
120.
Id at 750.
121. This approach falls short because it assumes that the values to be furthered are commonly shared and it tacitly accepts a set of values predicated on a public/private distinction.
Consequently, these assumptions legitimate the current social, economic, and political hierarchy. See supra note 34.
19851
FOURTH AMENDMENT
1213
lic/private distinction begins, as did the second, with the proposition that law is essentially subjective and political. As the preceding
discussion shows, law "breaks down" when asked to perform the
impossible (and undesirable?) task of reconciling a communal and
nurturing vision with an individualistic and calculating vision of society. But why do we want law to do any such thing? Can we not
treat it as a repository of conflicting political visions, as an arena for
moral struggle, rather than as a method for stifling such struggles?
Below I suggest how this vision of law, and the conceptual discussion of the public/private distinction on which it is based, might
make us think about one area in particular, the appointment of the
122
admittedly political decision-makers themselves-the judges.
Currently, such focus seems primarily to be the task of those outside
the legal profession. 23 Law schools virtually ignore the subject as if
to avoid the corruption that such knowledge might cause. Indeed,
most practicing lawyers also know relatively little about the judicial
selection and appointment process, unless they are interested in
such a position themselves. Not only is such a purposeful ignorance
foolish from a professional standpoint, it is theoretically blind. By
averting our collective eyes from the judiciary's selection process,
we imbue the bench with a mystical power that lends credence to its
illusion of objectivity. This is not to say that we should treat judges
as ordinary persons and everything will be all right. Judges are not
just plain folks. They are tremendously powerful individuals in our
society, particularly federal judges, and we should treat our selection process for such powerful individuals with the same serious
scrutiny with which we select our legislative and executive leaders.
Thus, I am also not suggesting that we depoliticize the judiciary's
selection process.
What I do suggest is that those individuals interested in theoretical reform of the definition of law seriously focus on those individuals who will inevitably apply it, regardless of how one defines it.
Such an approach is likely to be anathematic to scholars of all
stripes. It seems anti-intellectual, or manipulative, or too honest in
working out the implications ofjudicial politics for such ideas as the
rule of law. Nevertheless, I think there is something worthwhile to
it. The idea of "principled" political struggle within the law is unacceptable only if we remain fixated by the conceptual authoritarianism of formalist jurisprudence. If we are willing to admit that
122. See supra note 12 (discussing political nature ofjudiary's selection process).
128. For example, Professor Sheldon Goldman, the leading authority in the study ofjudicial politics is a professor of political science at Amherst College. See Goldman, Reaganizing the
Judiciary, supra note 12, at 329.
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formalism simply does not work, then why should we not reform
both our practical and theoretical approaches to judges. Why
should we not admit that judges are producing polemical political
theory? In every fourth amendment case as well as in all their other
cases, they are weaving together pictures of what the good society
should be. If this is so, should we not reform our conceptions of
them, and of the selection processes for them, appropriately? If
judges are social theorists, would it not be worthwhile to try and
make them good social theorists? Would it not be relevant to ajudicial appointment that the judge in question has a sincere and provocative vision of the family and its role in contemporary society?
Might it not, in fact, be more relevant that the question of her party
affiliation?
Practically, these suggestions are not necessarily tied to my analysis of the decline of the public/private distinction, or of any legal
distinction, for that matter. But what is the alternative? Lawyers of
both the left and the right can keep to themselves the belief that law
is political. And by doing so they would effectively ensure that the
"politics of the judiciary" will be less a matter of "principle," in its
non-wishy-washy sense, and more a matter of self-interested patronage. Worse still, perhaps, they would also ensure that greater
representation of women, minorities, and the working class will be
seen as a frill, rather than as a central part of principled law. After
all, if law is neutral, what does it matter who applies it? Such a
course of action not only be hypocritical, it would also betray the
visions of the good society contained in fourth amendment and elsewhere. And that would be a shame.