Dan Epps

Why?

Why?

Does the Fourth Amendment tolerate this limited emergency aid exception to the warrant requirement just because five or more justices of this court happen to believe that such injuries are reasonable?

Or is this exception more directly tied to the law?

And there he is quoting his dissent in a case from eight years ago called Carpenter, a case about digital searches.

We don't need to get into the details of it.

But where he laid out an approach to the Fourth Amendment that is kind of different than the prevailing approach, which, you know, which is based on reasonable expectations of privacy.

And he said, you know, instead to figure out whether the Fourth Amendment applies, look to the law.

But then he said, I don't really know what that means.

Does it mean you look at 1791 law?

Does it mean you look at, you know, the positive law today?

Not sure.

We're going to have to figure this out.

And unfortunately, he has not really had opportunities and has not really looked for opportunities, as far as I can tell, to flesh that out.

You've written about this.

Your theory is option two.

Look at the positive law today.

And particularly your view is look at the positive law governing private actors in the jurisdiction in which the police investigative conduct takes place.

Is that correct?

And then, you know, the other option is what Akhil Amar has used this metaphor you might call like a frozen in amber approach.