The Fourth Amendment After Carpenter

Matthew Tokson (University of Utah – S.J. Quinney College of Law) has posted 42nd Annual Foulston-Siefkin Lecture: The Next Wave of Fourth Amendment Challenges After Carpenter (Washburn Law Journal, Forthcoming) on SSRN. Here is the abstract:

The lecture discusses the future of Fourth Amendment law following the Supreme Court’s enormously important decision in Carpenter v. United States. It analyzes Carpenter and argues that its detailed account of the privacy harms caused by government surveillance will be its most important legacy. Moreover, the Court’s emphasis on the risk of privacy harm is not a one-off or a sharp break from previous practice. Carpenter is consistent with a long line of Supreme Court decisions ignoring or reshaping previous Fourth Amendment doctrines when necessary to protect citizens against unchecked surveillance. It also echoes previous cases that focus on the revealing, extensive, or intimate nature of surveillance when assessing whether a Fourth Amendment search has occurred.
The lecture then details some of the novel surveillance technologies that are likely to reach the Supreme Court over the next several years. These technologies include drones, smart homes and devices, web surfing surveillance, and pole cameras targeting a specific suspect’s home. Many of these technologies have already been used in police investigations and evaluated by judges in lower court cases. The lecture evaluates how the Supreme Court is likely to resolve these cases and uses the framework of Carpenter and its predecessors to make predictions about the future direction of Fourth Amendment law.

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