Volume 99 - Issue 6 Georgetown Law Journal

The Bilateral Fourth Amendment and the Duties of Law-Abiding Persons

The Fourth Amendment protects the innocent only from “unreasonable” searches. In light of the limited nature of this constitutional safeguard, law abiders consistently take precautions to avoid government searches. This Article considers why constitutional jurisprudence limits the protection of the innocent to “unreasonable” searches, thereby forcing them to alter their behavior. The most satisfying answer derives from an often-overlooked fact: Searches of innocent persons are often “bilateral accidents,” meaning that both the innocent suspect and the police can affect the likelihood that an erroneous search will occur. In bilateral conditions, a reasonableness rule induces both the searcher and the searched to take optimal care to avoid mistaken searches, while other rules embodied in constitutional protections—like that within the Takings Clause of the Fifth Amendment—cannot.

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