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70 Alb. L. Rev. 1 (2006-2007)
What Is a Search within the Meaning of the Fourth Amendment

handle is hein.journals/albany70 and id is 13 raw text is: ARTICLES WHAT IS A SEARCH WITHIN THE MEANING OF THE FOURTH AMENDMENT? Thomas K. Clancy* I. INTRODUCTION The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.' In analyzing any Fourth Amendment issue, two separate questions must be answered: Is the Amendment applicable; and (2) If so, is it satisfied?2 To be applicable, a search or seizure must occur. This Article addresses the definition of a search. There are few issues more important to a society than the amount of power that it permits its police to use without effective control.'3 When it labels certain governmental quests to obtain evidence as not a search within the meaning of the Fourth Amendment, the Supreme Court insulates * Director, National Center for Justice and the Rule of Law and Visiting Professor, University of Mississippi School of Law. I U.S. CONST. amend. IV. 2 See, e.g., Soldal v. Cook County, 506 U.S. 56, 69 (1992) (stating that the reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the Amendment applies). 3 Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 MINN. L. REV. 349, 377 (1974); cf. Brinegar v. United States, 338 U.S. 160, 180 (1949) (Jackson, J., dissenting) (emphasizing that [ulncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government); Harris v. United States, 331 U.S. 145, 161 (1947) (Frankfurter, J., dissenting) (stating that the protection against police search and seizure afforded by the Fourth Amendment is not an outworn bit of Eighteenth Century romantic rationalism but an indispensable need for a democratic society); James J. Tomkovicz, Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 MISS. L.J. 317, 325 (2002) (The significance of the threshold issue is hard to understate. If the employment of a new investigatory tool is not a search at all, it is outside the sphere of Fourth Amendment regulation, and government authorities are at liberty to use it whenever they wish, without need for prior justification.).

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