I've just finished a bunch of CrimPro reading encompassing the section in the casebook relating to the definition of a 'search' for 4th Amendment purposes. I come away from it as I do from a bad Chinese restaurant: dissatisfied, and maybe a little queasy.
My problem comes because the definitions are all over the map, and it defies logic to really put the cases together and come up with a coherent meaning for what a search is. More importantly, those tests used in the past and now seem to lack logical foundation. For example, a police helicopter 400 ft in the air taking pictures of your back yard is ok, but presumably leaving the window curtains open doesn't necessarily allow police to take zoom pictures of the inside of your house. Actually, thinking about it, maybe it does. After all, cameras with strong zoom lenses are definitely "in general public use." Kyllo v. U.S.
So much of the current law has to do with whether a person expects privacy and whether the society views that as acceptable. A point was made, though, that if this was a hard rule, the government could abrogate the 4th Amendment by simply announcing that everyone should just be ready to be searched. Smith v. Maryland, n.5. The Court mentions in its footnote that in this and other unusual circumstances "a normative inquiry would be proper."
But wait a second, isn't that exactly what the TSA does? Airline passengers (such as myself) expect our bags to be searched. It is announced quite clearly that they will be at any time. Even those bags that are not opened go through extensive testing with a strong X-Ray machine and a chemical detector. I can buy that the chemical detector is ok (based on dog sniff cases), but what about the X-Rays or the physical opening and inspection of a bag? Are we trading our 4th Amendment rights for the convenience of air travel? Do we really have a choice in today's global world? Am I just independently reasoning along paths that many others already have traveled?
Maybe class discussion on these matters will clear everything up. Maybe I'll find the answer with a little research. Maybe every airline passenger - especially those with the little TSA search notices (like me) - have viable 1983 actions.
Ok.. so first, you didn't tell me you got searched. I am just the kind of pop culture nerd who would find something like a TSA ticket frame-worthy.
Second, for some reason none of this, not a bit of it, surprises me. Maybe it is the way we saw our court system handling 'decided precedent' in other areas of constitutional law. Maybe it is that I have just become a lot more pessimistic about legal protections since coming to law school. Maybe it is that my shoes are too tight. but yeah.. not surprised.
Dude, haven't you heard? The world is just way too dangerous for the 4th Amendment these days. I mean, privacy is so *yesterday,* man. When the president says "jump," you don't ask why, only "how high?" Got it? If not, he'll just call you an enemy combatant and lock you up for as long as he wants w/out telling anyone! Hooray for freedom in the world's greatest democracy!