Abstract
There is a hydraulic relationship between Fourth Amendment rights and remedies. When rights expand, remedies shrink, and vice versa. That makes good sense. At its heart, the Fourth Amendment requires striking a reasonable balance between the competing interests of citizens and their government. Expanding rights by, say, adopting a more expansive definition of “searches,” or applying the Fourth Amendment to a new category of government conduct, compromises government interests. When this happens, courts can, and should, bring things back into balance by adjusting remedies.
Sometimes the Court is cognizant of this hydraulic relationship. When the Court expanded Fourth Amendment rights to encompass administrative searches, it preserved hydraulic equipoise by allowing the political branches to design bespoke alternatives to the warrant requirement. Similarly, when the Justices expanded rights by bringing the Fourth Amendment to bear on street encounters between police and citizens, they accommodated government interests by withdrawing the warrant and probable cause requirements. But sometimes the Justices are maddeningly blind to Fourth Amendment hydraulics. For example, in United States v. Katz the Court expanded Fourth Amendment rights by broadening the definition of “searches,” but it also held fast to the warrant requirement. That created a hydraulic crisis the Justices eventually resolved by creating the third-party and public observation doctrines, effectively clawing back rights.
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