In this essay, I contend that when evaluating the constitutionality of enhanced surveillance devices, the existing test for assessing the occurrence of a Fourth Amendment search should be modified. Specifically, I suggest that intrusiveness should be unambiguously adopted by the Court as the benchmark for assessing and defining the existence of a search under the Fourth Amendment. Moreover, intrusiveness should be clearly defined to require an examination of two factors: the functionality of a challenged form of surveillance and the potential for disclosure created by the device.
Renée M. Hutchins,
The Anatomy of a Search: Intrusiveness and the Fourth Amendment,
U. Rich. L. Rev.
Available at: https://scholarship.richmond.edu/lawreview/vol44/iss4/3