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Virginia Law Review Association
580 Massie Road
Charlottesville, VA 22903-1789
Phone: 434-924-3079
Fax: 434-982-2818
E-Mail: lawrev@virginia.edu
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March 2009, Volume 95, Issue 1
A Fourth Amendment Metamorphosis: How the Fourth Amendment Remedies and Regulations Facilitated the Expansion of the Threshold Inquiry
by Elizabeth Canter
95 Va. L. Rev. 155 (2009)
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United States v. Bond and United States v. Kyllo significantly departed from the Supreme Court’s prior Fourth Amendment jurisprudence. The definition of a Fourth Amendment search now captures a broader universe of law enforcement conduct. While this enlargement of the Fourth Amendment search inquiry has heretofore puzzled scholars, this Note argues that this enlargement may be consistent with the dynamic relationship that exists between rights and remedies. The erosion of Fourth Amendment remedial scheme—by making the exclusionary rule less available—has facilitated an expansion of the Fourth Amendment right.
This Note further argues that the dynamic between rights and remedies does not fully explain Bond and Kyllo. A second dynamic is in place that helps explain why the expansion of the Fourth Amendment right targeted the scope of conduct the Fourth Amendment is understood to regulate rather than the protections that attach when conduct is captured by the threshold inquiry. The Note argues that the rigor (or lack thereof) of these protections helps shape and define the threshold inquiry much the way constitutional remedies help shape and define constitutional rights. The corrosion of such protections in recent jurisprudence enabled the expansion of the threshold inquiry evidenced in Bond and Kyllo.
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