Offensive Searches: Toward a Two-Tier Theory of Fourth Amendment Protection

This Article examines the newly minted "trespass" test in Fourth Amendment law, which holds that police conduct qualifies as a search and triggers constitutional scrutiny when it involves "physical intrusion" onto a "constitutionally protected area." The trespass test portends a possible sea change, offering a new baseline of protection against searches that do not fit neatly within the familiar "reasonable expectations of privacy" framework of Fourth Amendment harm. Going forward, Fourth Amendment law will have two tiers: a first tier that asks whether government agents have searched by physically intruding on a constitutionally protected area, and a second tier that asks whether government agents have searched by impinging on a person's "reasonable expectations of privacy." Among scholars, there is a nascent but growing consensus that "intrusions" under the trespass test refer to violations of positive law. We disagree. Instead, we argue that the test is concerned with government action that would be highly offensive or degrading to a reasonable person. Not only does this construction better comport with the Court's reasoning in "trespass search" cases; it also brings into focus blurry corners of Fourth Amendment law that are hard to justify on privacy grounds but easily explained as tacit applications of the trespass as -indignity doctrine. The Article closes with an examination of dignity's role in Fourth Amendment law. We contend that dignity is a fundamental Fourth Amendment value because respect for dignity helps to preserve and strengthen popular sovereignty. Dignitary protections safeguard important interests in autonomy, equality, and human flourishing. And they ensure that government agents, in discharging their duties, adhere to norms of civility and respect, bolstering their status as the people's servants and guardians.