§ 6.01 WHY "SEARCH" LAW MATTERS

• Jurisdiction: United States

§ 6.01. Why "Search" Law Matters

[A] Constitutional Significance of the Term "Search"

The Fourth Amendment prohibits unreasonable searches and seizures. This chapter considers the meaning of the word "search" in the Fourth Amendment.¹

As the preceding sentence suggests, "search" is a technical term of art in Fourth Amendment jurisprudence. The word is not employed in its ordinary and popular sense. Indeed, the difference between the lay and legal meaning of the word is so substantial that lawyers, including those sitting on the Supreme Court, sometimes describe particular police activity as a "search," even as it is judged to be a "non-search" in the Fourth Amendment context.² In order to avoid this confusion, our discussion will refer to any police investigative activity generally as "surveillance" and use the term "search" only if the surveillance is covered by the Fourth Amendment.

If the police surveillance at issue is not a "search" (or a "seizure," as that term is explained in the next chapter), the Fourth Amendment simply does not apply. Put more starkly, if a court determines that no search (and no seizure) has occurred, Fourth Amendment analysis immediately ceases. As one judge bluntly put it, "the law does not give a constitutional damn" about non-search and non-seizure police activity.³

Consequently, in considering the law discussed in this chapter, do not lose sight of the fact that the question, "Was the Fourth Amendment satisfied?" is preceded by the critical threshold question, "Does the Fourth Amendment even apply to the police conduct at issue?" If a court answers the threshold question negatively, any claim that the police acted without a warrant or without probable cause — or even if the police acted maliciously—may properly be answered with the remark, "So what?" Indeed, "[w]hen the fourth amendment is inapplicable [because no "search" or "seizure" has occurred], good and evil have no relevance."⁴

[B] An Important Question for Further Consideration

In light of the cynical observation at the end of subsection [A], it is submitted here that the Supreme Court might have done itself and the law a service if it had chosen to define the term "search" in a common-sense dictionary-meaning manner,⁵ thus treating virtually every police investigative technique as a "search." If this were the case, courts could immediately turn to what is, after all, the ultimate Fourth Amendment issue: Is the contested law enforcement technique reasonable or...