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The Difficulty of the Search Question: More Thoughts on Chatrie

Another in a series.

Orin S. Kerr | 4.24.2026 5:53 AM

I have been posting on Chatrie v. United States, the Supreme Court's geofencing case to be argued on Monday.  In this post, I wanted to talk a bit on why the search question is particularly hard.

The Supreme Court has long struggled to explain what makes government action a "search" of an individuals' "persons, houses, papers, and effects."  The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood,  which were about what kinds of warrants were permitted to conduct a physical search.  But a central challenge of modern Fourth Amendment "search" law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion.

There is broad agreement that the Fourth Amendment needs to extend beyond actual physical intrusion: If it didn't, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records.  The hard question is, what's the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?

The Court has not done the best job at articulating this, I think.  It did a few things that make it extra hard. Two under-appreciated things stand out.

First, the Court has ignored a lot of the Fourth Amendment's text, which made the issue a lot harder to understand.  The Fourth Amendment prohibits unreasonable "searches" of "persons, houses, papers, and effects."  But the Court's precedents have often just described the issue as being what is a "search," ignoring the required thing to be searched in that language: "persons, houses, papers, and effects."  The word "search" has long had a range of different meanings, going back to 18th Century, and reducing the question to that one word adds a lot of confusion: It strips the constitutional question of its context and its history of the cases........

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