A Warrant Requirement Resurgence? The Fourth Amendment in the Roberts Court

Abstract

My article challenges the conventional wisdom that the United States Supreme Court’s Fourth Amendment jurisprudence over the past thirty years is marked by a consistent and continuing decline in the scope and significance of the warrant requirement. Instead, I argue that the past decade of the Roberts Court has produced a resurgence in the warrant requirement as a constitutional constraint on police investigations. The highly anticipated decision in Carpenter v. United States (June 22, 2018), which held unconstitutional the acquisition of historical cell-site location information about a defendant’s mobile phone because the Government obtained those corporate business records without a search warrant, is the latest case in this ongoing doctrinal development. Previous prominent decisions involving an inspection of digital data on a smartphone, GPS tracking of a motor vehicle, and a compulsory blood draw to determine blood-alcohol content in a routine drunk-driving investigation also ruled in favor of requiring search warrants. My article considers the full span of the Roberts Court’s Fourth Amendment decisions to conclude that the warrant requirement is likely to play an increasingly significant role in the doctrine in the years ahead, especially as the Court continues to confront the Fourth Amendment implications of data-driven surveillance and other technology-based police investigations in the internet age.