Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence

Abstract

Innocence, Privacy, and Targeting in Fourth Amendment Jurisprudence offers a theory of the Fourth Amendment that incorporates valuable elements of two diametrically opposed approaches to the right against unreasonable searches. One approach says that only the innocent should benefit from this right, and the other says that innocence is completely irrelevant to the right. Colb proposes that innocence is highly relevant to one’s entitlement to privacy, the right against unreasonable searches, but that the guilty are entitled by the Fourth Amendment to be free of targeted intrusions that are unsupported by facts known to law enforcement, ex ante. When police search culpably – in the absence of a legitimate ex ante evidentiary basis for doing so – they thus inflict a “targeting harm,” a type of procedural harm that occurs regardless of the target’s guilt or innocence. At the same time, innocent people uniquely suffer a “privacy harm” when their innocent privacy is invaded, regardless of police officers’ ex ante reasonableness and the corresponding lack of any governmental culpability. Colb’s “Innocence Plus Targeting” account of the Fourth Amendment accommodates powerful intuitions about police misconduct as well as about the injustice that many perceive in the suppression of incriminating evidence turned up during an unreasonable search. The Article concludes with implications of this model for Fourth Amendment law, remedies, and areas of doctrine outside the Fourth Amendment as well.