67 Geo. Wash. L. Rev. 1265 (1998-1999)
Distribution of Fourth Amendment Privacy

handle is hein.journals/gwlr67 and id is 1275 raw text is: The Distribution of Fourth
Amendment Privacy
William J. Stuntz*
Fourth Amendment law protects individual privacy, when it does so, by
barring the police from seeing or hearing certain things in certain ways unless
they have a sufficiently good reason. In general, the more harm to privacy
the investigative tactic causes, the better the reason must be. Thus, police
officers can see behavior on the street with no justification at all;1 they can
inspect a pedestrian's jacket pocket based on reasonable suspicion that the
pocket might contain a weapon coupled with reasonable suspicion of some
criminal activity;2 they can conduct a thorough search of a car only given
probable cause to believe the car contains evidence of crime (a higher stan-
dard than reasonable suspicion);3 they can search a private home only if they
have both probable cause and a warrant obtained in advance of the search4
It seems plausible to assume that houses are more private than cars, which
are more private than jacket pockets, which are more private than public
movements on the street. If so, the law affords a kind of graded protection to
individual privacy.
The literature in this area is full of criticism, but no one criticizes that. It
is common to complain that the law protects privacy too little, and a few of us
have argued that it should protect other things-the interest in being free
from unjustified police violence, for example-more.5 But there seems to be
fairly widespread agreement on the twin propositions that (1) Fourth
Amendment law should protect privacy, and (2) the protection should tend
to increase as the privacy invasion increases. Indeed, to state these two pro-
positions is to state the obvious.
These obvious propositions may be wrong. Begin with the central prob-
lem of late-twentieth-century American criminal justice: it seems biased,
both against the poor and against blacks. Between 1980 and 1992, the frac-
tion of defendants who received appointed counsel went from just under half
to four-fifths.6 Although this is not a precise measure of the proportion of
* Class of 1962 Professor and Horace W. Goldsmith Research Professor, University of
Virginia School of Law. I thank my fellow panelists Mike Seidman and Carol Steiker, along with
other participants in this conference, for helpful comments and criticisms. I also thank a long-list
of colleagues for comments on earlier drafts and/or conversations about the issues discussed
here: Anne Coughlin, Kim Forde-Mazrui, John Harrison, Mike Klarman, Daryl Levinson, Eliza-
beth Magill, Paul Mahoney, Elizabeth Scott, Paul Stephan, and Rip Verkerke. Finally, Lisa Mar-
tin provided very able research assistance.
1 See, e.g., United States v. Knotts, 460 U.S. 276 (1983).
2 See Terry v. Ohio, 392 U.S. 1 (1968).
3 See California v. Acevedo, 500 U.S. 565 (1991).
4 See, e.g., Mincey v. Arizona, 437 U.S. 385, 390, 395 (1978).
5 See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MicH.
L. REv. 1016, 1071-77 (1995).
6 According to the Bureau of Justice Statistics, the generally accepted indigency rate
June/August 1999 Vol. 67 No. 56

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