Searches intrude; fundamentally, they infringe on a right to exclude. So that right should form the basis of Fourth Amendment protections. Current Fourth Amendment doctrine-the reasonable expectation of privacy teststruggles with conceptual clarity and predictability. The Supreme Court's recent decision to overturn Roe v. Wade casts further doubt on the reception of other privacy-based approaches with this Court. But the replacement approach that several Justices on the Court favor, what I call the "maximalist" property approach, risks troublingly narrow results. This Article provides a new alternative: Fourth Amendment protection should be anchored in a flexible concept derived from property law-what this Article terms a "situational right to exclude." When a searchee has a right to exclude some law-abiding person from the thing to be searched, in some circumstances, the government must obtain a warrant before gathering information from that item. Keeping the government out is warranted when an individual has a situational right to exclude; it is exactly then that the government must get a warrant.




criminal law, constitutional law, privacy law

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SMU Law Review

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