Writing a Crim Pro Casebook: How Do You Cover the “Search” Question?
As I mentioned recently, I spent the last three months re-writing the Fourth Amendment materials for the Kamisar LaFave and Israel Criminal Procedure casebook for the 16th edition that will be available for use this coming fall semester. The biggest challenge of writing Fourth Amendment materials in a casebook is how to cover what counts as a Fourth Amendment “search.” I thought I might write about what I think the challenge is, and how I restructured the existing material for the new edition.
Here’s the problem. The Fourth Amendment prohibits unreasonable searches and seizures, and there is a dizzying amount of caselaw on what is a search. There are probably 50 or 60 major Supreme Court rulings on the question, and thousands upon thousands of major lower court cases. Further, the test itself is murky. The most often used test is the Katz “reasonable expectation of privacy,” but the cases on that are confusing; the Supreme Court sometimes treats that as a normative inquiry, sometimes as a descriptive inquiry, and when it’s descriptive it divides over what it’s describing. Then you add the trespass test, which is maybe (or maybe not) just a physical intrusion test — no one really knows, it depends on the judge — that does an uncertain amount of work on top of the privacy test. To top it off, the results need to give students clarity about where officers can go and what they can do in a wide range of situations. How on earth do you cover that, especially if you only have 60 pages or so in which to do it?
Here was my approach.
First, some context. In an introductory section, before the search materials begin, students will have first already been introduced to the idea that the original types of problems the Fourth Am
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