The inviolate home: Housing exceptionalism in the Fourth Amendment

Cornell Law Review

Volumn 95, Issue 5, 2010, Pages 905-956

  Stern, Stephanie M ^a  

^a CHICAGO KENT COLLEGE OF LAW   (United States)

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EID: 77955488750     PISSN: 00108847     EISSN: None     Source Type: Journal    
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References (404)

1. See United States v. Karo, 468 U.S. 705, 714-15 (1984);
2. Payton v. New York, 445 U.S. 573, 589-90 (1980);
3. Stephen P. Jones, Reasonable Expectations of Privacy: Searches, Seizures, and the Concept of Fourth Amendment Standing, 27 U. MEM. L. REV. 907, 957 (1997) ("The most sacred of all areas protected by the Fourth Amendment is the home.");
4. James Q. Whitman, The Two Western Cultures of Privacy: Dignity Versus Liberty, 113 YALE L.J. 1151, 1215 (2004) (noting that American privacy law conceives of the home "as the primary defense").
5. See, e.g., Margaret Jane Radin, Property and Personhood, 34 STAN. L. REV. 957, 997-1000 (1982) (advocating strong protection of the home from criminal searches because of residents' strong personhood interests);
6. see also Arianna Kennedy Kelly, The Costs of the Fourth Amendment: Home Searches and Takings Law, 28 Miss. C. L. REV. 1, 3 (2009) (suggesting compensation for harms to personhood inherent in residential searches).
7. The sanctity of the home in criminal law parallels the enhanced protection accorded to the home in property, tax, and bankruptcy law. See Stephanie M. Stern, Residential Protectionism and the Legal Mythology of Home, 107 MICH. L. REV. 1093, 1099-1108 (2009).
8. Activities or possessions within the home are subject to unregulated search and seizure only when occupants expose them to the public eye or ear, in certain exigent circumstances, or when the evidence is in plain view of a lawful intrusion.
9. See Horton v. California, 496 U.S. 128, 136-37 (1990).
10. See STEPHEN R. SADY, OFFICE OF THE FED. PUB. DEFENDER, DIST. OF OR., DEVELOPMENTS IN FEDERAL SEARCH AND SEIZURE LAW 1-2 (2006), http://or.fd.org/ SearchandSeizureSept2006.pdf.
11. See Trimble v. State, 816 N.E.2d 83, 94 (Ind. Ct. App. 2004) (holding that defendant had a reasonable expectation of privacy in the area encompassing the doghouse);
12. Bess v. State, 636 S.W.2d 9, 10 (Tex. App. 1982) (holding that warrant authorizing the search of a residence encompassed the dog house and other outbuildings). In a similar vein, courts have scrutinized whether privacy protections extend to discarded garbage.
13. See California v. Greenwood, 486 U.S. 35, 37, 40-41 (1988) (holding that search of garbage left on or at the curb did not intrude upon reasonable expectations of privacy because the garbage was outside the protective curtilage of the home and readily accessible to the public);
14. see also Croker v. State, 477 P.2d 122, 125 (Wyo. 1970) (holding that police officers did not violate the Fourth Amendment's prohibition on warrandess searches when they instructed garbage collectors to give garbage to authorities for inspection after the collectors removed it from the backyard).
15. 389 U.S. 347, 351 (1967).
16. Many scholars have discussed the property orientation of Fourth Amendment law with Orin Kerr's account being one of the more recent.
17. See Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 MICH. L. REV. 801, 809-27 (2004) (discussing the persistence of property concepts in Fourth Amendment doctrine).
18. In United States v. Kyllo, 553 U.S. 27 (2001), the majority described the shift in search and seizure doctrine from the common law of trespass of property to the reasonable expectations of privacy test, but the majority also noted that in the case of the home "there is a ready criterion, with roots deep in the common law, of the minimal expectation of privacy that exists, and that is acknowledged to be reasonable."
19. Id. at 34 (emphasis added and omitted);
20. see also William C. Heffernan, Property, Privacy, and the Fourth Amendment, 60 BROOK. L. REV. 633, 637 (1994) (noting that "the Fourth Amendment offers independent protection for property interests, apart from privacy interests").
21. See United States v. Dunn, 480 U.S. 294, 301 (1987) (describing the home's "umbrella" of Fourth Amendment protection).
22. Christopher Slobogin describes how this dynamic interacts with the probable cause standard in general. He observes that the probable cause standard "exerts enormous pressure on the courts to reduce the scope of the Fourth Amendment by narrowly defining 'search' and 'seizure.'" CHRISTOPHER SLOBOGIN, PRIVACY AT RISK 29 (2007).
23. See, e.g., Kyllo, 533 U.S. at 37 (holding that "[i]n the home,⋯all details are intimate details");
24. Dunn, 480 U.S. at 300, 303 (broadly defining intimate activities to include "domestic life" and holding that an area is protected curtilage if it "harbors the intimate activity associated with the sanctity of a man's home and the privacies of life" (internal quotation marks omitted)).
25. See, e.g., Dow Chem. Co. v. United States, 476 U.S. 227, 237 n.4 (1986) ("We find it important that this is not an area immediately adjacent to a private home, where privacy expectations are most heightened.");
26. California v. Carney, 471 U.S. 386, 390-92 (1985) (holding that the expectations of privacy are with regard to homes rather than automobiles).
27. See William J. Stuntz, Privacy's Problem and the Law of Criminal Procedure, 93 MICH. L. REV. 1016, 1062 & n.169 (1995).
28. See infra Part II.
29. See Christopher Slobogin & Joseph E. Schumacher, Reasonable Expectations of Privacy and Autonomy in Fourth Amendment Cases: An Empirical Look at "Understandings Recognized and Permitted by Society," 42 DUKE L.J. 727, 738 tbl.l (1993);
30. see also Jeremy A. Blumenthal et al., The Multiple Dimensions of Privacy: Testing Lay "Expectations of Privacy," 11 U. PA. J. CONST. L. 331, 355 tbl.l (2009).
31. See, e.g., United States v. Comprehensive Drug Testing, Inc., 579 F.3d 989, 998 (9th Cir. 2009) (en banc) (stating that magistrate judges should insist that the government waive reliance on the plain view doctrine when granting warrants to search computer hard drives or electronic storage);
32. see also Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 319 (2008) (discussing various data-mining activities by federal agencies).
33. See Tracey Maclin, Let Sleeping Dogs Lie: Why the Supreme Court Should Leave Fourth Amendment History Unabridged, 82 B.U. L. REV. 895, 971 (2002);
34. see also WILLIAM J. CUDDIHY, THE FOURTH AMENDMENT: ORIGINS AND ORIGINAL MEANING, 602-1791, at 772 (2009) (suggesting that the Framers could not "anticipat[e] the constitutional issues of later centuries") ;
35. LARRY YACKLE, REGULATORY RIGHTS: SUPREME COURT ACTIVISM, THE PUBLIC INTEREST, AND THE MAKING OF CONSTITUTIONAL LAW 5 (2007) (arguing for instrumentalism in interpreting the Constitution as opposed to the "pretense that the 1789 document and its amendments actually supply answers to difficult questions").
36. Katz v. United States, 389 U.S. 347, 351 (1967) (emphasis added).
37. 533 U.S. 27, 40 (2001).
38. See, e.g., Jed Rubenfeld, The End of Privacy, 61 STAN. L. REV. 101, 104-05 (2008) (arguing that the Fourth Amendment should protect security, not privacy, because the right to privacy does not address two central concerns of the Fourth Amendment: protection from government invasion and protection of liberty).
39. In the contexts of stop-and-frisk searches and vehicular stops, individual citizens who are subjected to a large number of intrusive searches are at a greater risk of psychological harm due to the ongoing loss of control and the inference that these practices signal a lack of societal respect toward them.
40. See Andrew E. Taslitz, Respect and the Fourth Amendment, 94 J. CRIM. L. & CRIMINOLOCY 15, 23-24 (2003) (exploring the notion of disrespect as the cause of anger in minority communities over search and seizure practices).
41. See SLOBOGIN, supra note 11, at 21-45. Scholars also disagree about the amount of practical protection that warrants provide.
42. See Ricardo J. Bascuas, Property and Probable Cause: The Fourth Amendment's Principled Protection of Privacy, 60 RUTGERS L. REV. 575, 589-93 (2008) (arguing that institutional competence, lack of resources, inadequate records of the probable cause finding, and lack of appellate review of probable cause findings undermine the protection that warrants provide);
43. Abraham S. Goldstein, Reflections on Two Models: Inquisitorial Themes in American Criminal Procedure, 26 STAN. L. REV. 1009, 1024-25 (1974) (observing that judges in warrant proceedings rely too heavily on counsel to raise issues and lack adequate administrative staff and resources).
44. See Winston v. Lee, 470 U.S. 753, 766-67 (1985) (intrusion into the body);
45. Katz v. United States, 389 U.S. 347, 350-53 (1967) (telephone booth);
46. see also Omnibus Crime Control and Safe Streets Act of 1968, 18 U.S.C. §§ 2510-2522 (2006).
47. See infra Part I.A.
48. Wilson v. Layne, 526 U.S. 603, 612 (1999). Scholars agree that the home site is jurisprudentially sacred.
49. See, e.g., Jones, supra note 1, at 957 ("The most sacred of all areas protected by the Fourth Amendment is the home.");
50. Kelly, supra note 2, at 7-8 (noting that the home has become the "gold standard" for Fourth Amendment protection).
51. Wasserstrom S.J., The incredible shrinking fourth amendment. 21 AM. CRIM. L. REV. 257, 257-259 1984.
52. See Weeks v. United States, 232 U.S. 383, 398 (1914) (establishing the exclusionary rule);
53. see also WAYNE R. LAFAVE, SEARCH AND SEIZURE: A TREATISE ON THE FOURTH AMENDMENT § 1.1 (4th ed. 2004) (describing the origins and purposes of the exclusionary rule).
54. Cf. Jeannie Suk, Taking the Home, 20 LAW & LITERATURE 291, 299-309 (2008) (discussing the tension in law regarding the crossing of public and private in the home).
55. United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 313 (1972).
56. Kyllo v. United States, 533 U.S. 27, 37 (2001)
57. Kyllo v. United States, 533 U.S. 27, 37 (2001) (quoting Silverman v. United States, 365 U.S. 505, 512 (1961)). Residential protection in Fourth Amendment law has addressed not only traditional dwellings but also temporary dwellings, such as hotels and boarding places, and some nontraditional residences, such as long-term hospital rooms.
58. See, e.g., United States v. Gooch, 6 F.3d 673, 677 (9th Cir. 1993) ("We have already established that a person can have an objectively reasonable expectation of privacy in a tent on private property.");
59. LaDuke v. Nelson, 762 F.2d 1318,1331-32 (9th Cir. 1985) (permitting legitimate law enforcement practices in a "migrant worker farm housing community" but holding that farm checks violate the Fourth Amendment). In Fourteenth Amendment cases, the protective shield of the home has extended so far as to legalize conduct within the privacy of the home that would otherwise be unlawful.
60. See Stanley v. Georgia, 394 U.S. 557, 565 (1969) (holding that a state statute criminalizing private possession of obscene materials may not "reach into the privacy of one's own home"). At the state level, the Alaska Supreme Court has extended constitutional protection to the personal consumption of marijuana in the home based on a right to privacy.
61. See Ravin v. State, 537 P.2d 494, 503-04 (Alaska 1975).
62. See, e.g., Groh v. Ramirez, 540 U.S. 551, 559 (2004) (holding that warrandess searches and seizures inside a home are "presumptively unreasonable" (quoting Payton v. New York, 445 U.S. 573, 586 (1980)));
63. Kirk v. Louisiana, 536 U.S. 635, 638 (2002) ("[T]he Fourth Amendment has drawn a firm line at the entrance to the house⋯[and] that threshold may not reasonably be crossed without a warrant." (quoting Payton, 445 U.S. at 590));
64. United States v. Karo, 468 U.S. 705, 714 (1984) ("[P]rivate residences are places in which the individual normally expects privacy⋯and that expectation is plainly one that society is prepared to recognize as justifiable.");
65. United States v. On Lee, 193 F.2d 306, 316 (2d Cir. 1951) (Frank, J., dissenting) (discussing inviolability of residential interiors).
66. As Linda McClain observes, the Court quite deliberately chose the word sacred, with its connotations of religiosity and inviolability, to describe the home in constitutional jurisprudence. Linda C. McClain, Inviolability and Privacy: The Castle, the Sanctuary, and the Body, 7 YALE J.L. & HUMAN. 195, 202-06, 232-41 (1995).
67. Payton, 445 U.S. at 590.
68. See, e.g., United States v. Dunn, 480 U.S. 294, 301 (1987) (describing a four-factor test to determine if an area is within the home's protected area);
69. United States v. Whaley, 781 F.2d 417, 420-21 (5th Cir. 1986) (holding that entering residential property and seizing marijuana plants growing adjacent to the house violates the Fourth Amendment).
70. Courts do not, however, appear reluctant to deem an area an open field rather than curtilage. This trend responds, as I shall discuss in Part IV, to an implicit recognition of the costs of the curtilage exception and the limited privacy interest in outdoor spaces.
71. See Dunn, 480 U.S. at 300 (discussing the development of the curtilage exception). A significant exception to curtilage protection is that the Court has allowed aerial surveillance of backyards so long as the airspace is generally accessible to the public.
72. See California v. Ciraolo, 476 U.S. 207, 213-15 (1986).
73. See Hester v. United States, 265 U.S. 57, 59 (1924).
74. See e.g., AMITAI ETZIONI, THE LIMITS OF PRIVACY 196 (1999) ("[C]ontemporary American society largely exempts from scrutiny most acts that occur inside the home ⋯).
75. James Whitman observes that Americans, unlike Europeans, "tend to imagine the home as the primary defense, and the state as the primary enemy." Whitman, supra note 1, at 1215;
76. see also Radin, supra note 2, at 992 ("There is⋯ the feeling that it would be an insult for the state to invade one's home because it is the scene of one's history and future, one's life and growth."). In some instances, there appears to be an unspoken sentiment that privacy protection should be employed to mitigate the harshness or discriminatory character of substantive criminal law. While I am sympathetic to these concerns, utilizing privacy and search law as a safety valve for the criminal justice system not only detracts from an efficient and coherent body of privacy law but also diffuses the political will necessary for independent reform of criminal law.
77. See Kelly, supra note 2, at 35.
78. See Kerr, supra note 8, at 814-27 (describing the property-based component of the Fourth Amendment).
79. 389 U.S. 347, 351 (1967).
80. See, e.g, Goldman v. United States, 316 U.S. 129, 134-36 (1942) ("We hold that what was heard by the use of the detectaphone was not made illegal by trespass or unlawful entry.");
81. Olmstead v. United States, 277 U.S. 438, 464-66 (1928) (holding that a search does not violate an individual's Fourth Amendment rights unless "there has been a search or seizure of his person, or such a seizure of his papers or his tangible material effects, or an actual physical invasion of his house 'or curtilage' for the purpose of making a seizure").
82. Katz, 389 U.S. at 361 (Harlan, J., concurring).
83. Sherry F. Colb, A World Without Privacy: Why Property Does Not Define the Limits of the Right Against Unreasonable Searches and Seizures, 102 MICH. L. REV. 889, 894 (2004) ("There has long been significant overlap between property rights and reasonable expectations of privacy. Privacy is one of the things that people value about private property.").
84. Katz, 389 U.S. at 361 (Harlan, J., concurring);
85. see, e.g., United States v. Rohrig, 98 F.3d 1506, 1518 (6th Cir. 1996);
86. United States v. Reed, 733 F.2d 492, 500-01 (8th Cir. 1984).
87. Alderman v. United States, 394 U.S. 165, 180 (1969). Subsequent cases, including those addressing warrantless arrest within the doorway of the suspect's residence, affirmed the home as a dividing line between constitutional and unconstitutional police conduct.
88. See Kelly, supra note 2, at 9 ("[The] seemingly magical quality of a home to confer immunity from warrantless arrest to a person as soon as he is inside does not seem to accord with Katz's claim that the protections of the Fourth Amendment are for people rather than places.").
89. 533 U.S. 27, 37, 40 (2001).
90. See id. at 29-30, 40.
91. so See id. at 29-30.
92. Id. at 34.
93. Id. at 34;
94. see also Christopher Slobogin, Peeping Techno-Toms and the Fourth Amendment: Seeing Through Kyllo's Rules Governing Technological Surveillance, 86 MINN. L. REV. 1393, 1413-14 (2002) (discussing the difficulties lower courts will face when applying the "not in general use" standard).
95. Kyllo, 533 U.S. at 41-42, 46 (Stevens, J., dissenting) (quoting United States v. U.S. Dist Court (Keith), 407 U.S. 297, 313 (1972)).
96. For a general overview of the problems of Fourth Amendment formalism, see Akhil Reed Amar, Fourth Amendment First Principles, 107 HARV. L. REV. 757, 759-61 (1994).
97. Kyllo, 533 U.S. at 37 (emphasis omitted);
98. see also Silverman v. United States, 365 U.S. 505, 512 (1961).
99. See, e.g., Kyllo, 533 U.S. at 40;
100. United States v. Dunn, 480 U.S. 294, 301 (1987) ("[T]he centrally relevant consideration [to the curtilage determination is] whether the area in question is so intimately tied to the home itself⋯). Fourth Amendment case law contrasts starkly with Fourteenth Amendment jurisprudence in its ready recognition and consistent application of the principle that "the safeguarding of the home does not follow merely from the sanctity of property rights. The home derives its pre-eminence as the seat of family life."
101. Poe v. Ullman, 367 U.S. 497, 551 (1961) (Harlan, J., dissenting);
102. see also Thomas P. Crocker, From Privacy to Liberty: The Fourth Amendment After Lawrence, 57 UCLA L. REV. 1, 3-5 (2009) (arguing that Fourth Amendment jurisprudence, rather than protecting intimate relationships, creates vulnerability).
103. See Illinois v. Rodriguez, 497 U.S. 177,186 (1990) (holding that warrandess entry to search for drug evidence did not violate the Constitution even though the police reasonably but erroneously believed that the consenting third party possessed common authority over the premises);
104. Hoffa v. United States, 385 U.S. 293, 302 (1966) (holding that defendant had no protected Fourth Amendment interest in information he voluntarily confided to a police informer while in the defendant's hotel room).
105. See Amezquita v. Hemandez-Colon, 518 F.2d 8, 11 (1st Cir. 1975) ("The [squatting] plaintiffs knew they had no colorable claim to occupy the land .⋯ That fact alone makes ludicrous any claim that they had a reasonable expectation of privacy."). As another example, housing inspections are permissible subject to a warrant based on satisfaction of reasonable legislative or administrative standards for local inspection, not traditional probable cause.
106. See Camara v. Mun. Court, 387 U.S. 523, 538 (1967) (holding that probable cause to issue a warrant to inspect property for housing code violations "must exist if reasonable legislative or administrative standards for conducting an area inspection are satisfied").
107. See Maryland v. Buie, 494 U.S. 325, 334 (1990) (holding that a properly limited sweep incident to a lawful in-home arrest is permissible when police possess a reasonable belief based on specific and articulable facts that area harbors an individual posing danger).
108. See Texas v. Brown, 460 U.S. 730, 738-40 (1983) (establishing plain view doctrine in context of vehicular search);.
109. cf Andrew E. Taslitz, Privacy as Struggle, 44 SAN DIEGO L. REV. 501, 507 (2007) ("[I]t is the home that seems to be the one place where the Court claims to be, and often is, granting privacy without requiring extraordinary efforts to see that what is said and done in the home stays in the home.").
110. Other scholars have argued that Fourth Amendment protection derives from an inside/outside distinction with interior spaces protected at the expense of exteriors. For an application of this theory to the internet, see Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 STAN. L. REV. (forthcoming 2010) (manuscript at 22-25), available at http://papers.ssrn. com/sol3/papers.cfm?abstract-id=1348322.
111. From this perspective, criminal law is unique not in its overattentiveness to the home - that solicitousness is also a principal feature of property law, for example - but in the fact that it (rightly) does not differentiate protection on the basis of ownership versus rental or short-term occupancy. See id.
112. See Tamera K. Hareven, The Home and Family in Historical Perspective, 58 Soc. RES. 253, 259 (1991) ("Following the removal of the workplace from the home as a result of urbanization and industrialization, the household was recast as the family's private retreat, and home emerged as a new concept and existence.").
113. See Benjamin E. Bratman, Brandeis and Warren's The Right to Privacy and the Birth of the Right to Privacy, 69 TENN. L. REV. 623, 632-33 n.59 (2002) (citing Newell v. Witcher, 53 Vt. 589, 591 (1880)).
114. See H.S. Hadley, Can the Publication of a Libel Be Enjoined?, 4 Nw. L. REV. 137, 145 (1896). Contemporaneously, journalists began to compare searches of homes to searches of the mail and telegraphs, a major privacy consternation of the nineteenth century.
115. See Telegrams in Court, N.Y. TRIB., Jan. 8,1877, at 4;
116. Trials of the Census-Taker, N.Y. TIMES, July 19, 1875, at 4. With respect to government search, Judge Thomas Cooley observed that "[the] maxim that 'every man's house is his castle' is made a part of our constitutional law in the clauses prohibiting unreasonable searches and seizures."
117. THOMAS M. COOLEY, A TREATISE ON THE CONSTITUTIONAL LIMITATIONS WHICH REST UPON THE LEGISLATIVE POWER OF THE STATES OF THE AMERICAN UNION 611 (Walter Carrington ed., 8th ed. 1927) (internal footnote omitted).
118. See, e.g., Samuel D. Warren & Louis D. Brandeis, The Right to Privacy, 4 HARV. L. REV. 193, 220 (1890) ("The common law has always recognized a man's house as his castle ⋯);
119. M.J. Savage, A Profane View of the Sanctum, 141 N. AM. REV. 137, 146-47 (1885) ("An Englishman's house is his castle." (quotation marks omitted)).
120. See Ronald Tobey et al., Moving Out and Settling In: Residential Mobility, Home Owning and the Public Enframing of Citizenship, 1921-1950, 95 AM. HIST. REV. 1395, 1413-19 (1990).
121. See id.
122. See Alan Zundel, Policy Frames and Ethical Traditions: The Case of Homeownership for the Poor, 23 POL'Y STUD. J. 423, 426-28 (1995) (describing effect of the federal "Own Your Own Home" campaign and New Deal-era legislation on the ideology of homeownership).
123. See, e.g., California v. Greenwood, 486 U.S. 35, 39-40 (1988) ("An expectation of privacy does not give rise to Fourth Amendment protection, however, unless society is prepared to accept that expectation as objectively reasonable.");
124. Oliver v. United States, 466 U.S. 170, 177 (1984) ("The Amendment does not protect the merely subjective expectation of privacy, but only those expectation [s] that society is prepared to recognize as 'reasonable.'"
125. (quoting Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring) (alteration in original) (internal quotation marks omitted)).
126. For example, while curtilage receives probable cause protection, strip searches in schools are subject to the lower standard of reasonable suspicion. See Safford Unified Sch. Dist No. 1 v. Redding, 129 S. CL 2633, 2642-43 (2009) (holding that school officials did not have reasonable suspicion to strip search thirteen-year-old girl based only on another student claiming to have received ibuprofen from her).
127. Kerr, supra note 8, passim (discussing privacy interests and the proper manner to regulate the use of new technologies for criminal investigations);
128. see also ETZIONI, supra note 38, at 9 ("[PJrivacy often is privileged over the common good⋯.").
129. Chris Slobogin has argued that the "probable cause forever" approach to the Fourth Amendment is a significant cause of this problem.
130. See SLOBOGIN, supra note 11, at 28-30;
131. see also Smith v. Maryland, 442 U.S. 735, 745-46 (1979) (no Fourth Amendment protection for the phone numbers that residents dial);
132. United States v. Miller, 425 U.S. 435, 437-40 (1976) (no warrant requirement to obtain bank records).
133. See FRED H. CATE, PRIVACY IN THE INFORMATION AGE 31 (1997) ("It is clear⋯that neither privacy values nor costs are absolute.");
134. see also Kenneth Einar Himma, Privacy Versus Security: Why Privacy Is Not an Absolute Value or Right, 44 SAN DIEGO L. REV. 857, 866 (2007) ("[Informational privacy rights are below security rights in the moral hierarchy.");
135. cf. AVISHAI MARGALIT, THE DECENT SOCIETY 201 (1996) ("The institutions in a decent society must not encroach upon personal privacy.").
136. For example, the curtilage doctrine has motivated artificial and nonsensical approaches to publicity to undo the damage that housing exceptionalism creates. The Fourth Amendment does not protect curtilage from aerial surveillance based on the questionable reasoning that commercial flights routinely enter the airspace above the curtilage.
137. See California v. Ciraolo, 476 U.S. 207, 213-15 (1986).
138. Similarly, driveways lose protection because they are susceptible to public trespass. See, e.g., United States v. Hatfield, 333 F.3d 1189, 1194-95 (10th Cir. 2003).
139. See, e.g., Taslitz, supra note 60, at 514-16.
140. See United States v. Hendrickson, 940 F.2d 320, 322 (8th Cir. 1991) (noting the importance of privacy to a free and open society).
141. 476 U.S. 227, 238-39 (1986).
142. In general, commercial property is also subject to a lower standard of reasonableness when it is also subject to regulation and privacy-dissolving civil inspection. See New York v. Burger, 482 U.S. 691, 702 (1987).
143. Dow, 476 U.S. at 237 n.4.
144. 471 U.S. 386, 390-92 (1985) (quoting South Dakota v. Opperman, 428 U.S. 364, 367-68 (1976)).
145. Erin Murphy, Paradigms of Restraint, 57 DUKE LJ. 1321, 1359 (2008).
146. See Stuntz, supra note 14, at 1061-62.
147. ROBERT DAVID SACK, HUMAN TERRITORIALITY: ITS THEORY AND HISTORY 33 (1986).
148. See Carney, 471 U.S. at 392-94;
149. David H. Steinberg, Constructing Homes for the Homeless? Searching for a Fourth Amendment Standard, 41 DUKE L.J. 1508, 1536-40 (1992) (describing the Connecticut state court case of State v. Mooney, 588 A.2d 145 (Conn. 1991), which considered the search of a homeless man living under a bridge underpass but ultimately extended protecdon on other grounds);
150. cf. United States v. Fultz, 146 F.3d 1102,1105 (9th Cir. 1988) (holding that homeless man had a reasonable expectation of privacy in a closed container that he stored with permission in another person's garage).
151. See supra notes 26-56 and accompanying text.
152. See Radin, supra note 2, at 1013;
153. see also Kelly, supra note 2, at 28.
154. See, e.g., Payton v. New York, 445 U.S. 573, 588 (1980) (illustrating the jurisprudential construction of the home as a protected "territory" at the core of the Fourth Amendment).
155. See id. at 589.
156. See Peter Kelvin, A Social-Psychological Examination of Privacy, 12 BRIT. J. Soc. & CLINICAL PSYCHOL. 248, 256 (1973) ("[A]reas of privacy, being a function of norms, may change - they are not immutable.").
157. Similarly, Amitai Etzioni observes, "Although some vague notion of privacy exists in most, if not all, societies, the specific way we treat privacy in our law and culture is a recent phenomenon .⋯ [PJrivacy is hardly a near-sacred concept that cannot be reformulated."
158. ETZIONI, supra note 38, at 188 (internal footnote omitted).
159. For example, tribal communities in Brazil live in communal housing, and the Javanese, whose dwellings frequently lack doors, freely enter and wander within others' private homes. Irwin Altman, Privacy Regulation: Culturally Universal or Culturally Specific?, 33 J. Soc. ISSUES 66, 72-74 (1977);
160. see also SANDRA PETRONIO, BOUNDARIES OF PRIVACY: DIALECTICS OF DISCLOSURE 24 (2002) ("[C]ultures may vary in the degree to which privacy plays a role in social life.").
161. See Alexander Kira, Privacy and the Bathroom, in ENVIRONMENTAL PSYCHOLOGY: MAN AND HIS PHYSICAL SETTING 269, 274-75 (Harold M. Proshansky et al. eds., 1970) (finding that lower socioeconomic status results in more crowded living conditions that relax privacy norms);
162. Robert S. Laufer & Maxine Wolfe, Privacy as a Concept and a Social Issue: A Multidimensional Developmental Theory, 33 J. Soc. ISSUES 22, 29 (1977) (reporting that children and adolescents cited the bathroom as a private place only in families with few members or a low occupant-per-room ratio);
163. Barry Schwartz, The Social Psychology of Privacy, 73 AM. J. Soc. 741, 743 (1968) ("Privacy has always been a luxury.").
164. See Laufer & Wolfe, supra note 91, at 29.
165. See Stephen T. Margulis, On the Status and Contribution of Westin's and Altman's Theories of Privacy, 59 J. Soc. ISSUES 411, 416 (2003).
166. But see, e.g., Adam D. Moore, Toward Informational Privacy Rights, 44 SAN DIEGO L. REV. 809, 815-18 (2007) ("[A] lack of private space ⋯ will threaten survival.").
167. In many instances, people employ territorial strategies to increase, not prevent, social contacts. See Peter H. Klopfer & Daniel I. Rubenstein, The Concept Privacy and Its Biological Basis, 33 J. Soc. ISSUES 52, 54 (1977).
168. See, e.g., SACK, supra note 83, at 7-9 (describing Chippewa Indian setdements).
169. Territoriality serves a constellation of functions, none of which maps onto residential criminal search. Owners or residents involved in criminal investigations are not resisting territorial invasion in order to affect their neighbors' behaviors or norms, increase the likelihood of passing on their genes, or personalize or mark territory to signal vigilance or community investment.
170. Cf. Ralph B. Taylor & Sidney Brower, Home and Near-Home Territories, in HOME ENVIRONMENTS 183, 193 (Irwin Altman & Carol M. Werner eds., 1985).
171. See SACK, supra note 83, at 24.
172. Id.
173. Territoriality studies focus on defense of feeding areas in situations where such defense is efficient. See Rada Dyson-Hudson & Eric Alden Smith, Human Territoriality: An Ecological Reassessment, 80 AM. ANTHROPOLOGIST 21, 22 (1978);
174. Marshall D. Sahlins, The Social Life of Monkeys, Apes and Primitive Man, in THE EVOLUTION OF MAN'S CAPACITY FOR CULTURE 54, 57 (J.N. Spuhler ed., 1959) (comparing territoriality in subhuman primates with primitive social behavior).
175. A variety of forces other than evolution shape human behavior: social drives, cultural learning and reproduction, and environmental changes. An evolutionary or biological explanation for territoriality would be tautological.
176. See SACK, supra note 83, at 21.
177. see e.g., supra notes 29-31 and accompanying text.
178. See IRWIN ALTMAN, THE ENVIRONMENT AND SOCIAL BEHAVIOR 18 (1975) (defining privacy regulation as a means to achieve an individual's or a group's optimum level of social interaction and access to the self);
179. Patricia Brierley Newell, Perspectives on Privacy, 15 J. ENVTL. PSYCHOL. 87, 91-93, 94-97 (1995).
180. See ALTMAN, supra note 103, at 18;
181. Kenneth Einar Himma, Separation, Risk, and the Necessity of Privacy to Weil-Being: A Comment on Adam Moore's Toward Informational Privacy Rights, 44 SAN DIEGO L. REV. 847, 850 (2007) ("The need for personal space is not the same as the need for privacy. My need to have a home of my own ⋯ is primarily motivated by a desire for security, not privacy.");
182. Patricia Brierley Newell, A Systems Model of Privacy, 14 J. ENVTL. PSYCHOL. 65, 75-76 (1994) (reporting that when asked about their actions to acquire privacy, less than half of subjects mentioned places and that a quarter of subjects included social interaction or other prosocial behavior as part of their privacy experiences).
183. See Roy F. Baumeister, A Self-Presentational View of Social Phenomena, 91 PSYCHOL. BULL. 3, 3 (1982) (explaining that self-presentation is "aimed at establishing ⋯ an image of the individual in the minds of others");
184. Edward E. Jones & Thane S. Pittman, Toward a General Theory of .Strategic Self-Presentation, in PSYCHOLOGICAL PERSPECTIVES ON THE SELF 231, 233 (Jerry Suls ed., 1982) (defining strategic self-presentation as "those features of behavior⋯designed to elicit or shape others' attributions of the actor's dispositions" (emphasis omitted)).
185. See ALTMAN, supra note 103, at 18 (stating that privacy is important only to the extent that it allows individuals to restrict access to themselves);
186. Glenorchy McBride, Privacy: A Relationship Model, 7 MAN-ENV'T SYS. 145, 148 (1977) (arguing that possession or ownership of "any space, personal, real estate, or temporary, may appear at first sight to be an individual construct [of privacy], yet since it always concerns access, ownership is in fact a statement of social relationships between people").
187. Olmstead v. United States, 277 U.S. 438, 478 (1928) (Brandeis, J., dissenting);
188. see Warren & Brandeis, supra note 66, at 193;
189. cf. Bascuas, supra note 23, at 585 (observing that Justice Brandeis's formulation "is more a rhetorical than a categorical characterization" ).
190. See Radin, supra note 2, at 967-68.
191. See id. at 960, 978.
192. See id. at 996-1002.
193. See, e.g., Kelly, supra note 2, at 6 (arguing that the harms to personhood resulting from residential search may merit compensation to the occupants of the home).
194. Although Radin's account focuses heavily on property, she does recognize the social and relational aspects of home. See Radin, supra note 2, at 1013 ("Our reverence for the sanctity of the home is rooted in the understanding that the home is inextricably part of the individual, the family, and the fabric of society."). In general, Radin's theory is somewhat amorphous and does not specify whether the crux of the personhood interest is to be a person, to be a particular person, to retain the same identity, or even to have a personality.
195. Compare id. at 957 ("[T]o achieve proper self-development - to be a person - an individual needs some control over resources in the external environment")
196. with id. at 968 ("If an object you now control is bound up in your future plans or in your anticipation of your future self, and it is partly these plans for your own continuity that make you a person, then your personhood depends on the realization of these expectations.").
197. See KRISTIN A. HANSEN, U.S. CENSUS BUREAU, SEASONALITY OF MOVES AND DURATION OF RESIDENCE 4 (1998), available at http://www.census.gOv/prod/3/ 98pubs/p70-66.pdf;
198. see also Susan Saegert, The Role of Housing in the Experience of Dwelling, in HOME ENVIRONMENTS, supra note 97, at 287, 290 (stating that the connection people feel toward their homes "depends on the housing market, the rental market, and the job market"). Unlike in the United States, homes in some cultures are imbued with personhood.
199. For example, the Zuni view the home as a living thing and the principle setting for communication with the spirit world, and the Tswana of South Africa believe that the spirits of their ancestors reside in the home's courtyard. See Carol M. Werner et al., Temporal Aspects of Homes: A Transactional Perspective, in HOME ENVIRONMENTS, supra note 97, at 1, 8, 20.
200. see Ernst Prelinger, Extension and Structure of the Self, 47 J. PSYCHOL. 13, 14-23 (1959) (presenting the results of a study asking adult subjects to rate eight categories of items on a scale of whether those items were "definitely a part of your own self"). One study that asked participants to rate items on a self/not-self scale found that relatives and friends, as well as body organs and even favorite vacation place, received higher ratings than dwelling.
201. See Russell W. Belk, Identity and the Relevance of Market, Personal, and Community Objects, in MARKETING AND SEMIOTICS 151, 154-56 (Jean Umiker-Sebeok ed., 1987).
202. Subjects rated the following items very similarly to current dwelling: favorite casual clothes, favorite vehicle now owned, and favorite book. Id. at 155. Also relevant to Fourth Amendment law, at least one study has found that subjects rank cars similarly to homes in terms of consumer's attachment and integration of the object into self-concept.
203. See A. Dwayne Ball & Lori H. Tasaki, The Role and Measurement of Attachment in Consumer Behavior, J. CONSUMER PSYCHOL. 155, 166 (1992).
204. See Prelinger, supra note 114, at 19.
205. In general, the psychology and sociology literature does not indicate, as Radin proposes, that the home is a requisite constituent of personhood.
206. Cf. ERVING GOFFMAN, THE PRESENTATION OF SELF IN EVERYDAY LIFE 22-25 (1959) (describing the role of the "setting" for individuals' functioning).
207. See Deborah A. Prentice, Psychological Correspondence of Possessions, Attitudes, and Values, 53 J. PERSONALITY & Soc. PSYCHOL. 993, 995-96 (1987);
208. see also MIHALY CSIKSZENTMIHALYI & EUGENE ROCHBERG-HALTON, THE MEANING OF THINGS: DOMESTIC SYMBOLS AND THE SELF 55-58 (1981) (identifying ten categories "symptomatic of what kinds of things people cherish in their homes").
209. See Lois M. Haggard & Carol M. Werner, Situational Support, Privacy Regulation, and Stress, 11 BASIC & APPLIED SOC. PSYCHOL. 313, 334 (1990) (discussing how an experimental privacy invasion, in the form of a confederate entering and lingering in a subject's room, did not cause objective harm to the subject's mood or assessment of the environment and actually improved the subject's performance of a secondary task). Instead, the research literature suggests that only a profound and longstanding loss of privacy in an individual's residence will threaten her personhood.
210. See David A. D'Atri, Psychophysiological Responses to Crowding, 7 ENV'T & BEHAV. 237, 247-50 (1975) (discussing a study that found a correlation between the number of inmates sharing a given space and the inmates' blood pressure levels).
211. For example, long-term disability, which has massive and irreversible impacts on privacy in the home, typically does not decrease happiness. DANIEL GILBERT, STUMBLING ON HAPPINESS 152-53 (2006) (noting that disabled persons can adapt quickly to their conditions).
212. See Peter Steinglass & Ellen Gerrity, Forced Displacement to a New Environment, in STRESSORS AND THE ADJUSTMENT DISORDERS 399, 401 (Joseph D. Noshpitz & R. Dean Coddington eds., 1990). A few studies have even found that forced relocation due to natural disaster predicts increased satisfaction with family life and neighborhood relations.
213. See, e.g., Thomas E. Drabek et al., The Impact of Disaster on Kin Relationships, 37 J. MARRIAGE & FAM. 481, 490-92 (1975) (family life);
214. Harry Estill Moore, Some Emotional Concomitants of Disaster, 42 MENTAL HYGIENE 45, 49-50 (1958) (neighborhood relations).
215. See Roy F. Baumeister, The Self, in THE HANDBOOK OF SOCIAL PSYCHOLOGY 680, 680 (Daniel T. Gilbert et al. eds., 4th ed. 1998) ("Selfhood is almost unthinkable outside a social context .⋯ Selves are⋯tools for relating to other people.");
216. see also JOHN T. CACIOPPO & WILLIAM PATRICK, LONELINESS: HUMAN NATURE AND THE NEED FOR SOCIAL CONNECTION 240 (2008) (noting that quality, not quantity, of relationships predicts loneliness).
217. Alternatively, the fact that the government is the home invader may create the harm that results from residential search. If this is the case though, then it calls into question public acceptance of housing inspection and zoning
218. See Kelvin, supra note 89, at 259 ("It is only in a condition of perceived privacy that one perceives oneself removed and protected from the power of others: and it is only to the extent that one has this sense of privacy that one can feel truly oneself, and responsible for one's actions ⋯).
219. Paul A. Freund, Professor, Harvard Law School, Address to the American Law Institute (May 23, 1975), in THE AMERICAN LAW INSTITUTE, 52ND ANNUAL MEETING 568, 574 (1976);
220. see also JEFFREY REIMAN, CRITICAL MORAL LIBERALISM: THEORY & PRACTICE 165 (1997) ("The right to privacy is the right to the existence of a social practice that makes it possible for me to think of this existence as mine.⋯The right to privacy, then, protects the individual's interest in becoming, being, and remaining a moral person." (emphasis added));
221. Jeffrey H. Reiman, Privacy, Intimacy, and Personhood, 6 PHIL. & PUB. AFF. 26, 39 (1976) (stating that privacy confers a "moral title to [one's] existence" (emphasis omitted)).
222. Warren & Brandeis, supra note 66, at 205.
223. See W.H. Foddy & W.R. Finighan, The Concept of Privacy from a Symbolic Interaction Perspective, 10 J. FOR THEORY SOC. BEHAV. 1, 6 (1980) ("Privacy is the possession by an individual of control over information that would interfere with the acceptance of his claims for an identity within a specified role relationship." (emphasis omitted)).
224. Jed Rubenfeld, The Right of Privacy, 102 HARV. L. REV. 737, 754-55 (1989).
225. See William R. Lund, Politics, Virtue, and the Right to Do Wrong Assessing the Communitarian Critique of Rights, 28 J. Soc. PHIL. 101, 104, 107 (1997) (quoting Justice Oliver Wendell Holmes's statement that "rights tend to declare themselves absolute to their logical extreme");
226. see also ETZIONI, supra note 38, at 190 ("As the right to privacy is viewed as an inalienable right, it does not yield to the common good.").
227. See Newell, supra note 103, at 93 (reviewing empirical studies of human behavior and finding that dominant or powerful individuals establish themselves in more private spaces and strongly enforce privacy boundaries).
228. In a self-report experiment that asked subjects to describe a situation where they preferred privacy, 76 percent of subjects mentioned whether others had respected their privacy. See Newell, supra note 104, at 74.
229. See Taslitz, supra note 22, at 15;
230. see also Altman, supra note 90, at 68 ("A person who can successfully control interaction with others is likely to develop more of a sense of competence and self-worth than a person who fails repeatedly to regulate contacts with others.").
231. See Taslitz, supra note 22, at 15, 21-22 (noting the concern of minority group members that police officers stop young black males without reason).
232. For example, Christopher Slobogin has suggested that an independent ombudsman could administer a damages remedy and assess monetary damages against individual police officers, for discriminatory action, and departments, for failure to train officers on race issues.
233. See SLOBOGIN, supra note 11, at 37.
234. See Katz v. United States, 389 U.S. 347, 361-62 (1967) (Harlan, J., concurring).
235. See supra notes 33-37 and accompanying text.
236. See Slobogin & Schumacher, supra note 16, at 739 - 41 (noting that safety inspections of residences and inspections of burned-down houses do not implicate substantial privacy concerns but still receive Fourth Amendment protection).
237. See id. at 738-39 (body cavity searches and wiretaps received higher intrusiveness scores than bedroom searches and other residential searches);
238. Blumenthal et al., supra note 16, at 358 tbl.l (tapping into corporation's computer and perusing bank records received higher intrusiveness ratings than any type of residential search).
239. Slobogin & Schumacher, supra note 16, at 736.
240. The study did not assess several residential contexts that frequently receive Fourth Amendment protection, such as searches of garbage within curtilage or searches of specific interior rooms other than a bedroom. See id. at 729, 738-39 tbl.l.
241. see Blumenthal et al., supra note 16, at 345 ("Our subjects' intrusiveness ratings are quite consistent with [Slobogin and Schumacher's] results; each of our samples correlated highly with their overall data.").
242. See Slobogin & Schumacher, supra note 16, at 739-40.
243. See id. at 738-39. They did find that subjects rated open-field searches as moderately intrusive.
244. See id.
245. However, from the perspective of relational privacy, this item may have conflated property-focused expectations of autonomy with privacy-focused expectations of autonomy because the authors framed the question as being about privacy and autonomy and described the open field as being surrounded by a fence and "No Trespassing" signs.
246. See id. at 736.
247. See id. at 738-39.
248. Obtaining information through the use of undercover agents also received moderately high intrusiveness ratings. See id.;
249. see also Kelvin, supra note 89, at 255 (sexual intercourse typically subject to strong norms of privacy).
250. Subjective expectations of privacy may not track objective harm: laboratory studies of minor privacy invasions show that subjects complain about intrusion and privacy violations but report no negative effects on mood or task performance. See Haggard & Werner, supra note 118, at 334.
251. See, e.g., Bascuas, supra note 23, at 580 (describing reasonable expectations of privacy as "subjective specters that ⋯ judges view idiosyncratically");
252. Richard G. Wilkins, Defining the "Reasonable Expectation of Privacy": An Emerging Tripartite Analysis, 40 VAND. L. REV. 1077, 1128 (1987) ("The potentially limidess number of factors relevant to the determination whether a given expectation of privacy is 'reasonable' has resulted in confusion and uneven application of constitutional doctrine.").
253. See Richard A. Posner, The Uncertain Protection of Privacy by the Supreme Court, 1979 SUP. CT. REV. 173, 188;
254. cf. Bailey H. Kuklin, The Plausibility of Legally Protecting Reasonable Expectations, 32 VAL. U. L. REV. 19, 32-33 (1997) (arguing that this circularity enables a feedback mechanism because it cannot be avoided completely).
255. See Kelvin, supra note 89, at 252 (Privacy refers to a "subjective state .⋯ [Pjrivacy is perceived privacy.").
256. 149 U.S. CONST, amend. IV;
257. see, e.g., Kyllo v. United States, 533 U.S. 27, 34 (2001).
258. See United States v. Hendrickson, 940 F.2d 320, 322 (8th Cir. 1991) (stating that the ultimate question for the Fourth Amendment is "'whether, if the particular form of [conduct] practiced by the police is permitted to go unregulated by constitutional restraints, the amount of privacy and freedom remaining to citizens would be diminished to a compass inconsistent with the aims of a free and open society'"
259. (quoting 1 W. LAFAVE & J. ISRAEL, CRIMINAL PROCEDURE § 3.2, at 165 (1984)));
260. cf. Harold J. Krent, Of Diaries and Data Banks: Use Restrictions Under the Fourth Amendment, 74 TEX. L. REV. 49, 53 (1995) (proposing additional privacy protections for property or information seized by government).
261. See, e.g., Christopher Slobogin, Government Data Mining and the Fourth Amendment, 75 U. CHI. L. REV. 317, 319 (2008) (describing data-mining efforts by the federal government);
262. Robert Sprague, Orwell Was an Optimist: The Evolution of Privacy in the United States and Its De-evolution for American Employees, 42 J. MARSHALL L. REV. 83, 84 (2008) (arguing for strengthening employee privacy rights particularly as technology and workplace flexibility erode the strict division between work and home).
263. See Horton v. California, 496 U.S. 128, 134-36 (1990) (establishing standard for the plain-view seizure doctrine);
264. cf. Arizona v. Hicks, 480 U.S. 321, 324-25 (1987) (holding that when police move objects in homes to obtain a better view, they initiate a separate search subject to the Fourth Amendment reasonableness requirement).
265. It is not clear whether the plain-view seizure doctrine operates as a release valve when the stringency of Fourth Amendment doctrine threatens crime-control needs, or whether the Fourth Amendment reduces the impact of the plain view doctrine by constraining the scope and reducing the number of searches that may give rise to corollary seizures. Most likely, both are true.
266. Doctrines prohibiting police actions that bear the indices of harassment, such as prosecuting for minor violations, repeatedly searching a particular person or group, or using crimes unrelated to the original investigation to obtain pleas, could also address these concerns.
267. See Stuntz, supra note 14, at 1061 (" [P]rotecting privacy in the home casts a smaller substantive shadow than protecting privacy in glove compartments or jacket pockets.").
268. 156 U.S. CONST, amend. IV.
269. Cf. Maclin, supra note 18, at 896-97 ("[T]he Justices consult the history of the Amendment on a selective basis .⋯ [T]he Article proposes that the Court stop considering the historical origins of the Fourth Amendment unless it is able to develop a more effective and consistent method by which to do so.").
270. Kyllo v. United States, 533 U.S. 27, 34 (2001);
271. see also Payton v. New York, 445 U.S. 573, 589 (1980) (Fourth Amendment protection of privacy rights in the home "finds its roots in clear and specific constitutional terms: 'The right of the people to be secure in their⋯houses⋯shall not be violated.'" (quoting U.S. CONST, amend. IV)).
272. See Fabio Arcila, In the Trenches: Searches and the Misunderstood Common-Law History of Suspicion and Probable Cause, 10 U. PA. J. CONST. L. 1,10-12 (2007) (describing controversy over writs of assistance);
273. Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 MICH. L. REV. 547, 590 (1999) ("[T]he Framers adopted constitutional search and seizure provisions with the precise aim of ensuring the protection of person and house by prohibiting legislative approval of general warrants." (emphasis added)).
274. But see David E. Steinberg, Restoring the Fourth Amendment: The Original Understanding Revisited, 33 HASTINGS CONST. L.Q. 47, 48-49 (2005) (arguing that in the Framing Era, the Fourth Amendment applied only to unlawful house searches).
275. Because postmasters started the first newspapers, citizens suspected that private mail would become public news. In addition, concerns circulated during the revolutionary period that governments were opening or tampering with mail and that private individuals would steal mail in order to glean information about each others' assets and commit theft or fraud.
276. SEE DAVIDJ. SEIPP, THE RIGHT TO PRIVACY IN AMERICAN HISTORY 9-16 (1978);
277. Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy, 60 STAN. L. REV. 553, 562-68 (2007);
278. see also Denis v. LeClerc, I Martin (o.s.) 297, 297-98 (Orleans 1811) (writer of letter may enjoin its unauthorized publication or disclosure).
279. Entick v. Carrington, (1765) 95 Eng. Rep. 807, 817-18 (K.B.) (quoted in Boyd v. United States, 116 U.S. 616, 627-28 (1886)).
280. COOLEY, supra note 65, at 306. In the modern day, the link between houses and papers is attenuated. As Ricardo Bascuas observes, "Houses ⋯ are no longer the primary repository of the very papers and effects the Framers most sought to protect" Bascuas, supra note 23, at 580;
281. see also Stuntz, supra note 14, at 1060 ("The dominant paradigm in search and seizure law has always been the ransacking of a private home, with an emphasis on rummaging around through the homeowner's books and papers.").
282. For example, protection of the person from privacy invasions featured prominendy in these historical accounts. See William Cuddihy & B. Cannon Hardy, A Man's House Was Not His Castle: Origins of the Fourth Amendment to the United States Constitution, 37 WM. &: MARY Q. 371, 372 (1980) (describing how the Fourth Amendment was a break from, rather than an extension of, the English tradition of "house as castle," which offered primarily discretionary protection and led to frequent intrusions on the home).
283. See Davies, supra note 159, at 551 ("[T]he historical concerns were almost exclusively about the need to ban house searches under general warrants.").
284. See id. at 645-46;
285. cf. CUDDIHY, supra note 18, at 771 ("The prevention of general warrants at the federal level was the preponderant motivation behind the amendment.⋯ Why debate probable cause for a specific warrant to search one house when a general warrant laid entire towns open to government purview?");
286. Tracey Maclin, The Central Meaning of the Fourth Amendment, 35 WM. & MARY L. REV. 197, 218 (1993) (noting that while the Framers were not directly concerned with warrandess searches, such searches were a matter of public concern).
287. See Davies, supra note 159, at 590 (arguing that, for this reason, the Framers adopted constitutional search and seizure provisions).
288. See CUDDIHY, supra note 18, at 766.
289. See Davies, supra note 159, at 603. In Davies's view, the house was important intrinsically as well as strategically. He writes that even though modern cases recognize the unique status of the home at common law, "the rhetoric of modern doctrine falls short of recognizing the unique status accorded the house at common law. The domicile was a sacrosanct interest in late eighteenth-century common law⋯."
290. Id. at 642. Accordingly, the house received greater legal protection than places of business and ships.
291. See CUDDIHY, supra note 18, at 770 ("[T]he dwelling house was not only the focus but a frontier of the framers' concern with privacy, for they accorded places of business lesser protection from promiscuous search and seizure, and ships, in the Collection Act, almost none.").
292. G. Edward White, Revisiting the Ideas of the Founding 12, 25 (Univ. Va. Law Sch. Pub. Law & Legal Theory Working Paper Series, Paper No. 132, 2009), available at http://law.bepress.com/cgi/viewcontent.cgi?article= 1202&context=uvalwps.
293. CUDDIHY, supra note 18, at 770.
294. See White, supra note 169, at 24 (claiming that the Bill of Rights signaled the limited power of federal government). The Founders were attuned to the issues of corruption and government tyranny but perceived that the solution lay with a central government, not scrutiny of civil liberties violations.
295. See id. at 26.
296. See Davies, supra note 159, at 740-41 ("Applying the original meaning of the language of the Fourth Amendment in a completely changed social and institutional context would subvert the purpose the Framers had in mind when they adopted the text.").
297. But see Steinberg, supra note 159, at 74 (arguing that the eighteenth-century understanding of the Fourth Amendment limited its scope to unlawful house searches and also arguing for a return to that understanding "not because eighteenth century views on law enforcement are particularly relevant today⋯ [but] because we lack coherent, principled alternatives").
298. Davies, supra note 159, at 743. This statement is especially true given the degree of indeterminacy in the original Fourth Amendment. Maclin observes that beyond the specific prohibition of general warrants, "the scope and meaning of the Fourth Amendment was just beginning to develop" in the Constitutional Era.
299. See Maclin, supra note 18, at 968.
300. See Maclin, supra note 18, at 971.
301. See supra Part II.
302. See supra Part I.
303. For example, some state courts have held that the Fourth Amendment does not protect the interior of residences from observation with binoculars. See, e.g., People v. Arno, 15 Cal. Rptr. 2d 624, 627-28 (Cal. Ct. App. 1979).
304. See United States v. Fisch, 474 F.2d 1071, 1078-79 (9th Cir. 1973).
305. See, e.g., Safford Unified Sch. Dist. No. 1 v. Redding, 129 S. Ct 2633, 2642-43 (2009) (holding that a strip search of a thirteen-year-old girl was unconstitutional because the facts of the case did not indicate cause for reasonable suspicion). With respect to video surveillance, some local rules and state laws constrain such searches, but there is no comprehensive regulation or case law direcdy addressing what protection the Fourth Amendment grants in these situations.
306. In United States v. Knotts, 460 U.S. 276 (1983), the Court was equivocal in addressing the issue of twenty-four-hour surveillance, noting that "if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."
307. Id. at 284;
308. see also Christopher Slobogin, Public Privacy: Camera Surveillance of Public Places and the Right to Anonymity, 72 Miss. LJ. 213, 219-33 (2002) (discussing the history, scope, and problems of closed-circuit television surveillance in the United States and United Kingdom).
309. Segura v. United States, 468 U.S. 796, 810 (1984);
310. see also Wilkins, supra note 146, at 1111-12 ("Before Katz, the home was protected simply because it was the home. ⋯ After Katz, the home is a protected locale, not only by virtue of its explicit mention in the language of the fourth amendment, but also (and perhaps primarily) because of the human activities innately associated with it."). It is also plausible to read intimate association into the language of the Fourth Amendment protecting the "right of the people to be secure in their persons." U.S. CONST, amend. IV.
311. See CSIKSZENTMIHALYI & ROCHBERG-HALTON, supra note 117, at 86 (reporting that 82 percent of people listed an object as among their most valued possession because it reminded them of a close relative);
312. GRANT MCCRACKEN, CULTURE AND CONSUMPTION II: MARKETS, MEANING, AND BRAND MANAGEMENT 35-46 (2005) ("[OJbjects are intended to recall the presence of family and friendship relationships, personal achievements, family events, ritual passages, and community associations.").
313. See John T. Cacioppo et al., Loneliness Within a Nomological Net: An Evolutionary Perspective, 40 J. RES. PERSONALITY 1054, 1080-82 (2006) (finding that social isolation is as strong a risk factor for morbidity and mortality as smoking, poor exercise, and high blood pressure);
314. L. Elizabeth Crawford et al., Potential Mechanisms Through Which Loneliness Affects Health, 37 PSYCHOPHYSIOLOGY S34, S34 (Supp. 2000) (describing in abstract links between loneliness and poor-quality sleep and high blood pressure);
315. Mark Snyder & Nancy Cantor, Understanding Personality and Social Behavior: A Functionalist Strategy, in THE HANDBOOK OF SOCIAL PSYCHOLOGY, supra note 121, at 635, 657 (describing some benefits of intimate social connecdons).
316. See Snyder & Cantor, supra note 183, at 654;
317. see also Setha M. Low & Irwin Airman, Place Attachment: A Conceptual Inquiry, in PLACE ATTACHMENT 1, 7 (Irwin Airman & Setha M. Low eds., 1992).
318. Katz v. United States, 389 U.S. 347, 351 (1967) (emphasis added). In contrast, Thomas Crocker views relational privacy as a liberty interest that may be read into the Fourth Amendment based on the Fourteenth Amendment.
319. See Crocker, supra note 56, at 7-8 ("Lawrence protects against forms of state intrusion into a person's home and intimate life in ways that are instructive for overcoming some of the worst consequences of the Fourth Amendment's third-party doctrine.").
320. Oliver v. United States, 466 U.S. 170, 179 (1984);
321. see also Segura, 468 U.S. at 810 (stating that the need to protect the home springs from "privacy interests in the activities that take place within"). In addition, the Fourth Amendment security interest may provide another basis for situating intimate association within the Fourth Amendment. Jed Rubenfeld argues that the Fourth Amendment protects liberty within "personal life," and presumably interpersonal life, from the normalizing force of an unchecked government.
322. See Rubenfeld, supra note 21, at 127-31.
323. See SLOBOGIN, supra note 11, at 38-39.
324. In particular, the Court has had to create Fourth Amendment doctrine to govern technological invasions that the Wiretap Act does not regulate. 18 U.S.C. §§ 2510-2522 (2006).
325. 468 U.S. 705, 714-15 (1984).
326. 533 U.S. 27, 29, 35-37 (2001).
327. See id. at 40.
328. See Slobogin, supra note 52, at 1393-94.
329. See, e.g., United States v. Pinson, 24 F.3d 1056, 1058-59 (8th Cir. 1994).
330. See Alyson L. Rosenberg, Comment, Passive Millimeter Wave Imaging: A New Weapon in the Fight Against Crime or a Fourth Amendment Violation?, 9 ALB. L.J. Sci. & TECH. 135, 138-40 (1998);
331. see also James J. Tomkovicz, Technology and the Threshold of the Fourth Amendment: A Tale of Two Futures, 72 Miss. L.J. 317, 438 (2002) (proposing that police investigations using technologies that enhance human sensory capabilities and threaten genuine interests in confidentiality are searches for the purposes of the Fourth Amendment).
332. Most Fourth Amendment scholars positively view the protection that Kyllo extends. For a balanced assessment of the case, see Slobogin, supra note 52, at 1393-95.
333. Kyllo, 533 U.S. at 38.
334. in addition, some forms of technological surveillance may enhance privacy by reducing the need for more intrusive physical searches of the home. See Lee C. Milstein, Note, The Fortress of Solitude or Lair of Malevolence? Rethinking the Desirability of Bright-Line Protection of the Home, 78 N.Y.U. L. REV. 1789, 1790-91 (2003).
335. Slobogin argues that the intrusiveness rankings for curtilage flyovers (ranked ten out of fifty items, from least intrusive to most intrusive) and binocular observation of a person in a front yard (ranked thirty-three out of fifty items) suggest that people view home surveillance using enhancement devices as more intrusive than the Supreme Court appears to believe.
336. See SLOBOGIN, supra note 11, at 69-70. I disagree. First, the rankings, particularly for flyovers, were minimal or moderate. Second, the type of information and interaction that spying with binoculars potentially reveals is far more personal - and interpersonal - than a thermal scan. Indeed, a thermal scan revealing a grow-light system is far more similar to a curtilage flyover, which presumably is designed to detect illegal plant growth or other contraband, than to binocular spying, which implicates interpersonal interaction and domestic life. The difference in intrusiveness rankings may therefore be due to the greater potential for invasion of intimate association and other privacy interests from binocular spying.
337. But see Jack I. Lerner & Deirdre K. Mulligan, Taking the "Long View" on the Fourth Amendment: Stored Records and the Sanctity of the Home, 2008 STAN. TECH. L. REV. 3, \\ 45-46 (arguing that detailed utility information should be within the purview of the Fourth Amendment because it reveals private information about when a person is at home, sleeping, bathing, etc.).
338. See id. For example, people continue to use the Internet despite the collection of information about their web searches, an item arguably more personal than heat patterns. Admittedly, many Internet items, such as breaking news, travel bookings, and blog cites, are difficult, even impossible in modern life, to eschew. But even noncritical, discretionary internet searches do not appear to be "chilled" by personal information collection.
339. Alternatively, a constitutional approach could address this problem through a reduced standard of reasonable suspicion (rather than probable cause) coupled with warrant substitutes to constrain police behavior. Slobogin notes that in Kyllo, the fact that "'all details are intimate details' ⋯ does not necessarily dictate that probable cause is needed to use devices that detect only heat waves and do not reveal their source."
340. SLOBOGIN, supra note 11, at 74-75. Intimate association gives the proportionality principle an important reference point for determining the intrusiveness of a search. This reference point is perhaps most useful in the context of thermal scans and other technological searches that only reveal physical attributes of a home.
341. See United States v. Oliver, 466 U.S. 170,179 (1984). The curtilage doctrine derives from English common law extending equivalent protection to houses and outbuildings under the law of burglary.
342. See 4 WILLIAM BLACKSTONE, COMMENTARIES *225 ("[T]he capital house protects and privileges all its branches and appurtenances, if within the curtilage or homestall.").
343. See, e.g., United States v. Jenkins, 124 F.Sd 768, 773 (6th Cir. 1997) (finding that backyard with "neatly mowed lawn and garden arrangements" is "clearly demarked as a continuation of the home itself);
344. United States v. Van Dyke, 643 F.2d 992, 993 (4th Cir. 1981) (holding that a flower patch bordering mowed lawn 150 feet from a house is not per se outside the protected curtilage);
345. Coffin v. Brandau, No. 07-cv-835, 2008 U.S. Dist. LEXIS 64952, at *17-18 (M.D. Fla. July 31, 2008) (attached garage).
346. 480 U.S. 294, 301 (1987).
347. See id. Assuming the analysis narrowly targets the property immediately surrounding the home, proximity to the house may indirecdy implicate indmate associadon.
348. Commentators have also criticized curtilage doctrine for affording greater protection to rural residents than to urban or suburban dwellers. See Brendan Peters, Note, Fourth Amendment Yard Work Curtilage's Mow-Line Rule, 56 STAN. L. REV. 943,976-79 (2004);
349. see also Carrie Leonetti, Open Fields in the Inner City: Application of the Curtilage Doctrine to Urban and Suburban Areas, 15 GEO. MASON U. CIV. RTS. LJ. 297, 311-19 (2005) ("Factors like proximity to the home or the existence of a fence make sense only in a relatively rural area.").
350. Oliver, 466 U.S. at 180 (quoting Boyd v. United States, 116 U.S. 616, 630 (1886));
351. see also Dunn, 480 U.S. at 300-01.
352. Dunn 480 U.S. at 301-02.
353. See, e.g., Simko v. Town of Highlands, 276 Fed. App'x 39, 41 (2d Cir. 2008) (finding that the presence of an overflowing dog "'poop pit' strongly suggests that the area surrounding the shed would be unattractive to private home activities").
354. See, e.g., United States v. Reilly, 875 F. Supp. 108,119 (N.D.N.Y. 1994) (citing Dunn factors but basing decision on the fact that officers found marijuana plants on a "groomed area" of the lawn despite the area's lack of enclosure or use in domestic life);
355. State v. Bayless, No. 92-CA-527, 1992 Ohio App. LEXIS 6280, at *8 (Ohio Ct. App. Dec. 10, 1992) (holding that seizure of marijuana plants on the mowed lawn between the house and garden violated rights in the protected curtilage);
356. State v. Townsend, 412 S.E.2d 477, 479 (W. Va. 1991) (holding that hog house outside the mowed area of lawn was not within curtilage);
357. see also Peters, supra note 206, at 965-73 (discussing the significance courts have attributed to "mow lines"); Rowan Themer, Comment, A Man's Barn Is Not His Castle: Warrantless Searches of Structures Under the "Open Fields Doctrine,"
358. 33 S. III. U. L.J. 139, 145-48 (2008) (reviewing state and federal cases determining whether a search occurred in open fields or protected curtilage).
359. See Falknerv. State, 98 So. 691, 692 (Miss. 1924) (holding that the state constitution protects areas with no buildings as "possessions").
360. See State v. Kirchoff, 587 A.2d 988, 994 (VL 1991) (holding that an owner of an open field has a reasonable expectation of privacy where fences or signs reasonably indicate that strangers are not welcome).
361. See State v. Bullock, 901 P.2d 61, 75-76 (Mont. 1995) (interpreting the state constitution to mean that persons may have a reasonable expectation of privacy in areas of land beyond the curtilage if they place fences, "No Trespassing" signs, or other indications that entry is forbidden);
362. People v. Scott, 593 N.E.2d 1328, 1330,1338 (N.Y. 1992) (holding that open fields may fall within curtilage where landowners place fences, post "No Trespassing" signs, or otherwise indicate that entry is not permitted).
363. To better account for nonrelational harms in this scenario, a privacy-focused reasonableness inquiry into the search's scope, temporal period, character, and degree of intrusiveness could accompany the "nature of the use" factor.
364. See SLOBOGIN, supra note 11, at 242 n.108 (compiling cases, including curtilage cases, allowing warrantless searches based on less than probable cause).
365. See id. at 30 (arguing that the proportionality approach responds to the "intuition, reflected throughout our jurisprudence, that the government's burden should vary depending on the effect of its actions on the individual"). He identifies two standards lower than probable cause: reasonable suspicion and relevance. He defines reasonable suspicion as thirty percent certainty that criminal activity is occurring and relevance as five percent certainty that criminal activity is occurring.
366. See id. at 38-39.
367. Id. at 30.
368. See id. at 108-15 (referencing empirical study of levels of perceived intrusiveness)
369. Slobogin proposes that search and seizure doctrine encompass all government action that constitutes a search for evidence, including coundess areas now excluded, and that warrants or warrant substitutes apply in all cases absent exigency. See id. at 45-47.
370. In the residential search context, this Article's depiction of the inefficiency and intransigence of the iconic home may suggest less dramatic reform. Retaining some form of the Dunn test but enabling some searchers with less than probable cause is a more incremental, and thus more palatable, reform. Categorically excluding some government action on curtilage as a non-search based on attenuated relational and other privacy interests may allow more efficient sifting and use of judicial resources. Similarly, requiring a warrant or warrant substitute for all curtilage searches may not be cost effective. From the perspective of resource conservation, the Supreme Court should not foreclose the possibility that some instances of residential search will qualify as searches and meet a proportional balancing test, perhaps under the lowest relevance standard, but do not require ex ante review in the form of a warrant substitute.
371. See United States v. Santana, 427 U.S. 38, 42 (1976).
372. See 476 U.S. 207, 210 (1986).
373. See Jake Linford, Comment, The Right Ones for the Job: Divining the Correct Standard of Review for Curtilage Determinations in the Aftermath of Ornelas v. United States, 75 U. CHI. L. REV. 885, 886-87 (2008).
374. See supra note 215.
375. See Irwin Altaian, Toward a Transactional Perspective: A Personal Journey, in ENVIRONMENT AND BEHAVIOR STUDIES: EMERGENCE OF INTELLECTUAL TRADITIONS 225, 240 (Irwin Alt- man & Kathleen Christensen eds., 1990) ("[I]mportant human relationships occur in homes, including intimate social bonds and all manner of family relationships.");
376. see also CSIKSZENTMIHALYI & ROCHBERG-HALTON, supra note 117, at 121-24 ("[A] home is much more than a shelter; it is a world in which a person can create a material environment that embodies what he or she considers significant");
377. MCCRACKEN, supra note 182, at 35 (observing that the home and its unique objects have "the effect of deeply personalizing the present circumstances").
378. Werner et al., supra note 113, at 1, 3.
379. See CSIKSZENTMIHALYI & ROCHBERG-HALTON, supra note 117, at 86 (reporting that 82 percent of people listed an object as among their most valued because it reminded them of a close relative);
380. MCCRACKEN, supra note 182, at 35-46 (noting role in domestic life of "objects [that] are intended to recall the presence of family and friendship relationships, personal achievements, family events, ritual passages, and community associations").
381. see Poe v. Ullman, 367 U.S. 497, 551 (1961).
382. See supra notes 138-44 and accompanying text.
383. Contrary to popular intuition, the fact that police see or handle personal items is a lesser consequence of house search. Police are generally strangers, and our self-presentation and interpersonal concerns before them are highly attenuated. If the concern is that police will discuss private information or embarrassing activities not the subject of the crime with other community members, an internal rule prohibiting disclosure to a community member or tort liability for any such disclosure can address this problem. For a discussion of the problem of use of private information discovered in criminal search, see Krent, supra note 150, at 51 (arguing that seized property should be subject to "use restrictions ⋯ confining the governmental authorities to uses consistent with the [Fourth] Amendment's reasonableness requirement").
384. Another example of a doctrine that promotes interpersonal conflict within the home is third-party consent, which enables a third party with common authority to consent to search.
385. See United States v. Madock, 415 U.S. 164, 171 (1974). In recent scholarship, Thomas Crocker has argued persuasively that this doctrine forces the suspect to assume the risk of interpersonal sharing.
386. See Crocker, supra note 56, at 48-49.
387. Traditionally, third-party consent cases have focused on a cohabitant's apparent authority to consent to police trespass and search rather than on substantive privacy and relational harm. In a substantive privacy framework with
388. See, e.g., Dorothy K. Kagehiro et al., Perceived Voluntariness of Consent to Warrantless Police Searches, 18 J. APPLIED SOC. PSYCHOL. 38, 46-47 (2006) (finding significant actor (third party) and observer (court) differences in perceptions of the perceived voluntariness of consent and the ramifications of legal consent). In addition, a substantive approach, by redirecting the inquiry to privacy harm, raises the question of whether the type of residential search, and its invasiveness, should matter to third-party consent cases.
389. See Marc Jonathan Blitz, Video Surveillance and the Constitution of Public Space: Fitting the Fourth Amendment to a World that Tracks Image and Identity, 82 TEX. L. REV. 1349, 1364 (2004) ("Instead of protecting individual expectations of privacy direcdy, courts might best protect privacy in public life indirectly by identifying and protecting those features of our society, including those features of public space, that allow anonymity and other privacy- related interests to exist in sufficient measure.");
390. see also Bascuas, supra note 23, at 579, 626-28 (advocating that Fourth Amendment doctrine abandon the direct protection of privacy and instead protect property, broadly and pragmatically defined).
391. I thank Tommy Crocker for his comments on this point
392. Commentators have noted "the difficulties in predicating constitutional protection on anything so abstract and manipulable as privacy." Bascuas, supra note 23, at 580.
393. Minnesota v. Carter, 525 U.S. 83, 100 (1998) (Kennedy, J., concurring).
394. See Rubenfeld, supra note 127, at 784.
395. See Rubenfeld, supra note 21, at 161.
396. See Charles Fried, Privacy, 77 YALE L.J. 475, 483-84 (1968).
397. cf⋯ Tracey Maclin, Police Interrogation During Traffic Stops: More Questions Than Answers, 31 CHAMPION 34, 34-36 (2007) (describing precedents allowing police to stop and question motorists about subjects unrelated to the purpose of the traffic stop).
398. See, e.g., Laurie Magid, Deceptive Police Interrogation Practices: How Far Is Too Far?, 99 MICH. L. REV. 1168, 1199 (2001) (describing limited police resources as one justification for eschewing strong prohibitions on deception in interrogation).
399. For members of protected classes, state prohibitions against discrimination and the availability of federal Section 1983 actions to redress discrimination and other constitutional violations may also protect against repeat search that rises to the level of discrimination or harassment. See 42 U.S.C. §;§; 1983, 14141 (2006)
400. See ALTMAN, supra note 103, at 22 ("Privacy is usually an interpersonal event⋯).
401. See Slobogin & Schumacher, supra note 16, at 738-39 tbl.l.
402. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
403. See supra note 118 and accompanying text. Prioritizing intimate association over protection of the physical home is also consistent with the psychology literature conceptualizing privacy as interaction management.
404. See Laufer & Wolfe, supra note 91, at 33.