Privacy's Problem and the Law of Criminal Procedure

A substantive problem lies at the heart of criminal procedure: the law is grounded on the protection of a particular value - privacy - that implies aggressive substantive judicial review of a sort that has not been allowed for the past 50 years. Current 4th and 5th Amendment law seems to deal with the problem through a series of special rules or exceptions, doctrines that treat some privacy intrusions as if they just do not count. In light of that conflict, it is hard to see which side in these disputes is liberal and which is conservative: broader protection of privacy is the road back to the Four Horsemen, while reduced privacy protection guards the integrity of the 1937 revolution. The connection between privacy-based limits on police authority and substantive limits on government power as a general matter is addressed. The effects of that connection on 4th and 5th Amendment law, both past and present, are addressed. It is suggested that privacy protection has a deeper problem: it tends to obscure more serious harms that attend police misconduct, harms that flow not from information disclosure but from the police use of force.