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NCJ Number: 98435 Find in a Library
Title: Consent, Expectations of Privacy, and the Meaning of 'Searches' in the Fourth Amendment
Journal: Journal of Criminal Law and Criminology  Volume:75  Issue:2  Dated:(Summer 1984)  Pages:319-362
Author(s): P Goldberger
Date Published: 1984
Page Count: 44
Format: Article
Language: English
Country: United States of America
Annotation: Problems of interpretation regarding the fourth amendment are discussed with a focus on concepts of expectation of privacy and the related concept 'assumption of risk.'
Abstract: The article demonstrates how aspects of privacy and assumption of risk can be better accommodated within a determination of whether there has been voluntary and authoritative consent, rendering a search reasonable even without a warrant or probable cause. The article discusses confusions and redundancies in the meaning of the fourth amendment term 'searches' and uses cases to illustrate the discrepancies. It shows that the Supreme Court's 'no search' and consent cases are closely related and often indistinguishable. Substantial overlaps in the facts and concepts considered in the Supreme Court discussion of search and consent are revealed. The author offers a new, comprehensive interest-based definition of 'search,' defining search or seizure as a governmental action impairing one of four individual interests: privacy of person, house, papers, and effects. The article discusses the doctrine of consent searches to demonstrate how careful employment of the notion of expectation of privacy, and its attendant concept, assumption of risk, can lead to the solution of several perennial problems in consent analysis. It is concluded through illustration that application of this theory to problem cases eliminates redundancies and ambiguities in the current 'no search' and consent cases, clarifies the proper analysis of these cases, and rationalizes the definitions of search and consent in such a way as to uphold legitimate individual privacy interests while meeting law enforcement requirements. Two hundred and six reference notes are provided.
Index Term(s): Consent search; Legal privacy protection; Right of privacy; Search warrants
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