This Note, by modifying certain aspects of the reasonable expectation of privacy test, offers a theory that attempts to identify the minimum content of the fourth amendment. In the first section, the Note examines the reasonable expectation of privacy test and considers whether it has been or can be applied in a manner that fails to protect the right to have certain minimum expectations of privacy. It analyzes both the "actual" and the "reasonable" expectation requirements, identifies weaknesses inherent in the current application of these requirements, and suggests certain ways in which they might be refined. In the second section, the Note looks beyond the literal requirements of the refined reasonable expectation of privacy test to consider whether even after modification the test adequately protects the values implicit in the fourth amendment. First observing that the Court has continued to identify the sanctity of the home as being at the core of the amendment and then observing that the pre-Katz open field-curtilage distinction continues to play a significant role in the resolution of fourth amendment cases, it demonstrates that the "constitutionally protected areas" test is not inconsistent with Katz. In the final section, the Note concludes that, rather than being viewed as retaining significance independent of the expectations test, the protected areas test should instead be viewed as defining a set of expectations that are safe from governmental encroachment because they are reasonable as a matter of law.
Michigan Law Review,
Reconsideration of the Katz Expectation of Privacy Test,
Mich. L. Rev.
Available at: https://repository.law.umich.edu/mlr/vol76/iss1/6