The Benefits of the Fourth Amendment’s Property-Rights Baseline

Since 2012, Fourth Amendment claimants have had two alternative doctrinal tests available to establish that government investigative activity constitutes a Fourth Amendment search implicating their rights.First, if the government physically intrudes on a person, house, paper, or effect to gather information, its conduct is a search, even if the claimant had no reasonable expectation of privacy against the government intrusion.The Court has referred to this directive as the "property-rights baseline." 1 Second, even in the absence of a physical intrusion on a constitutionally protected area, if government surveillance infringes a person's reasonable expectation of privacy, such surveillance is also a search.I have previously argued that expansive property frameworks proposed by Justice Gorsuch and by some scholars are likely to resemble the privacy rubric for Fourth Amendment interpretation, both in the results they would produce and with regard to the subjectivity and unpredictability often attributed to the privacy model.However, contrary to recent scholarly claims, the narrower physical intrusion test is a valuable supplement to the privacy framework; it will often lead to different results than the privacy standard and will frequently lead to clearer analysis, more predictable results, and broader protection against government surveillance than was the case under the exclusively privacy-based regime that preceded the Court's endorsement of the property-rights baseline.