{"id":70,"date":"2018-01-29T16:56:53","date_gmt":"2018-01-29T21:56:53","guid":{"rendered":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/?page_id=70"},"modified":"2025-05-12T11:09:44","modified_gmt":"2025-05-12T15:09:44","slug":"collective-standing-under-the-fourth-amendment","status":"publish","type":"page","link":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/in-print\/volume-55-issue-1-winter-2018\/collective-standing-under-the-fourth-amendment\/","title":{"rendered":"Collective Standing Under the Fourth Amendment"},"content":{"rendered":"<p>&nbsp;<\/p>\n<p>The Supreme Court\u2019s landmark decision in <em>Katz v. United States<\/em><sup>1<\/sup> changed the direction of Fourth Amendment law. There, the Court redefined \u201csearches\u201d as government actions that violate subjectively manifested expectations of privacy \u201cthat society is prepared to recognize as \u2018reasonable.\u2019\u201d<sup>2<\/sup> Although perceived as progressive at the time, this reasonable expectation of privacy test3 has done significant violence to \u201c[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .\u201d<sup>4<\/sup> Some of these wounds have been inflicted by the public observation doctrine<sup>5<\/sup> and the third party doctrine,<sup>6<\/sup> which together immunize a wide variety of government searches from Fourth Amendment scrutiny because they do not\u2014in the Supreme Court\u2019s view, at least\u2014constitute \u201csearches\u201d at all.<sup>7<\/sup> In recent years new and emerging surveillance technologies have exploited these doctrinal rules to a dramatic degree, facilitating a variety of programs that engage in broad and indiscriminate searches,<sup>8<\/sup> subjecting each of us and all of us to the constant threat of searches based on bad reasons, insufficient reasons, or no particular reasons at all.<sup>9<\/sup> Despite those threats, <em>Katz <\/em>places these programs outside the scope of Fourth Amendment regulation because the means and methods of searching employed are not considered \u201csearches.\u201d<sup>10<\/sup><\/p>\n<p>The problems following in the wake of the public observation and third party doctrines have been explored in depth by academics, critics, and the courts.<sup>11<\/sup> By contrast, rules governing Fourth Amendment standing that developed in the wake of <em>Katz <\/em>have largely escaped sustained critique.<sup>12<\/sup> That is unfortunate. These rules have set artificial constraints on who can challenge government searches; the ability of individuals and groups to challenge searches and seizures at the programmatic level; the kinds of evidence deemed relevant in Fourth Amendment cases; and the types of remedies litigants can pursue. These limits have had particularly deleterious effects on efforts to challenge racial bias in search and seizure practices, including stop and frisk programs and use of force protocols.<sup>13<\/sup> This Article seeks to document some of the damage and to chart a way forward.<\/p>\n<p>Part I describes the current state of affairs in government searches and seizures with a focus on stop and frisk practices. Recent investigations by the Department of Justice along with publicly available data show that stop and frisk programs demonstrably threaten the right of the people to be secure against unreasonable searches and seizures. Much of that threat is focused on perfectly innocent and law-abiding members of minority groups and the poor, too many of whom are subjected daily to the threat of being stopped and frisked. Part II provides a brief primer on the law of Fourth Amendment standing, which allows challenges only to individual instances of government action by those who have suffered a personal violation of their subjectively manifested and reasonable expectations of privacy. Part III explains how the rules governing Fourth Amendment standing have hamstrung the ability of the people to challenge unreasonable search and seizure practices by limiting who can sue, what evidence they can offer, and what remedies they can seek. Part IV outlines an alternative approach that takes seriously the collective dimensions of Fourth Amendment rights, which, after all, are guaranteed to \u201cthe people.\u201d Recognizing the collective nature of Fourth Amendment rights affords broad standing for any member of \u201cthe people\u201d to seek prospective remedies sufficient to guarantee for everyone the right to be secure against unreasonable searches and seizures.<\/p>\n<p><a href=\"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-content\/uploads\/sites\/15\/2018\/04\/55-1-Collective-Standing-Under-the-Fourth-Amendment.pdf\">Keep Reading<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"<p>&nbsp; The Supreme Court\u2019s landmark decision in Katz v. United States1 changed the direction of Fourth Amendment law. There, the Court redefined \u201csearches\u201d as government actions that violate subjectively manifested [&hellip;]<\/p>\n","protected":false},"author":28,"featured_media":0,"parent":98,"menu_order":2,"comment_status":"closed","ping_status":"closed","template":"abstract.php","meta":{"_acf_changed":false,"_price":"","_stock":"","_tribe_ticket_header":"","_tribe_default_ticket_provider":"","_tribe_ticket_capacity":"0","_ticket_start_date":"","_ticket_end_date":"","_tribe_ticket_show_description":"","_tribe_ticket_show_not_going":false,"_tribe_ticket_use_global_stock":"","_tribe_ticket_global_stock_level":"","_global_stock_mode":"","_global_stock_cap":"","_tribe_rsvp_for_event":"","_tribe_ticket_going_count":"","_tribe_ticket_not_going_count":"","_tribe_tickets_list":"[]","_tribe_ticket_has_attendee_info_fields":false,"footnotes":"","_tec_slr_enabled":"","_tec_slr_layout":""},"class_list":["post-70","page","type-page","status-publish","hentry"],"acf":[],"ticketed":false,"_links":{"self":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/70","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages"}],"about":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/types\/page"}],"author":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/users\/28"}],"replies":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/comments?post=70"}],"version-history":[{"count":1,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/70\/revisions"}],"predecessor-version":[{"id":1660,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/70\/revisions\/1660"}],"up":[{"embeddable":true,"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/pages\/98"}],"wp:attachment":[{"href":"https:\/\/www.law.georgetown.edu\/american-criminal-law-review\/wp-json\/wp\/v2\/media?parent=70"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}