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111 Mich. L. Rev. 311 (2012-2013)
The Mosaic Theory of the Fourth Amendment

handle is hein.journals/mlr111 and id is 339 raw text is: THE MOSAIC THEORY OF THE FOURTH AMENDMENT Orin S. Kerr* In the Supreme Court's recent decision on GPS surveillance, United States v. Jones, five justices authored or joined concurring opinions that applied a new approach to interpreting Fourth Amendment protection. Before Jones, Fourth Amendment decisions had always evaluated each step of an investigation individually. Jones introduced what we might call a mosaic theory of the Fourth Amendment, by which courts evaluate a collective sequence of government activity as an aggregated whole to consider whether the sequence amounts to a search. This Article considers the implications of a mosaic theory of the Fourth Amendment. It explores the choices and puzzles that a mosaic theory would raise, and it analyzes the merits of the proposed new method of Fourth Amendment analysis. The Article makes three major points. First, the mosaic theory represents a dramatic departure from the basic building block of existing Fourth Amendment doctrine. Second, adopting the mosaic theory would require courts to answer a long list of novel and challenging questions. Third, courts should reject the theory and retain the traditional sequential approach to Fourth Amendment analysis. The mosaic approach reflects legitimate concerns, but implementing it would be exceedingly dif- ficult in light of rapid technological change. Courts can better respond to the concerns animating the mosaic theory within the traditional parame- ters of the sequential approach to Fourth Amendment analysis. TABLE OF CONTENTS IN TRODU CTION ................................................................. ..................312 I. THE SEQUENTIAL APPROACH TO THE FOURTH AMENDMENT .315 A. Sequential Analysis in Search and Seizure Law ................ 315 B. The Search Inquiry Under the Sequential Approach......... 316 C. Constitutional Reasonableness Under the Sequential Approach ........................................................................... 317 D. Constitutional Remedies Under the Sequential Approach 319 II. MAYNARD/JONES AND THE INTRODUCTION OF THE M OSAIC THEORY ........................................................320 A. The Facts of Maynard/Jones.............................................. 321 B. The D.C. Circuit's Opinion the Maynard .......................... 323 C. The Supreme Court's Opinions in Jones ........................... 326 III. IMPLEMENTING THE MOSAIC THEORY .....................................328 * Fred C. Stevenson Research Professor, George Washington University Law School. Thanks to Will Baude, David Pozen, Daniel Solove, Paul Ohm, Marc Blitz, and Steve Leckar for comments on an earlier draft. 311

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