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Future of the Fourth Amendment: The Problem with Privacy, Poverty and Policing

For decades, the reasonable expectation of privacy has been the primary standard by which courts have determined whether a “search” has occurred within the meaning of the Fourth Amendment. The Supreme Court’s recent decision in U.S. v. Jones, however, has reinvigorated the physical trespass doctrine’s importance when determining whether there has been a “search” triggering constitutional protection. Recognizing the unpredictability of the reasonable expectation of privacy doctrine and that doctrine’s bias against the urban poor, many scholars hope that the Jones opinion may ameliorate the class divide that has developed in Fourth Amendment jurisprudence.This Article argues that while Jones has reiterated that a physical trespass may trigger Fourth Amendment protection, this holding alone will not result in any appreciable strengthening of the privacy rights of the urban poor. This Article will explain how current Fourth Amendment standards afford less protection to economically disadvantaged citizens (particularly, the urban-dwelling poor) when compared with more affluent citizens. I will also argue that this jurisprudence is largely unchanged by the Court’s recent decision in U.S. v. Jones. While this Article ultimately concludes that Jones is not the catalyst for the desperately needed doctrinal change, several extrajudicial solutions are suggested to ensure fair and just law enforcement strategies within the most vulnerable communities. Thus, the goal of this Article is not to enter the debate about whether Jones’ emphasis on trespass will increase privacy protections for the urban poor, but rather to reiterate that, due to the manner in which these communities are policed, advocates should place more emphasis on extrajudicial means to improve the privacy rights of citizens.