In 2016 and 2017, U.S. regulation enforcement scanned 2.5 billion license plates, ninety 9.5% of which belonged to autos unassociated with prison disclose.410×410. Gape Tanvi Misra, Who’s Tracking Your License Plate?, Bloomberg City Lab (Dec. 6, 2018, 9:31 AM), [].
The principle appellate court in the country to take care of whether employ of automatic vehicle plate readers411×411. “Computerized vehicle plate readers are cameras [that] . . . title and ‘be taught’ license plates on passing autos” via subtle technology. Commonwealth v. McCarthy, 142 N.E.3d 1090, 1095 (Mass. 2020). ALPRs narrative photos of the license plates they title, in conjunction with a car’s vehicle plate number, shuttle lane, date, time, trouble, and the direction of shuttle. Identity.
(ALPRs) constitutes a search under the Fourth Modification,412×412. Gape Orin S. Kerr, Computerized License Plate Readers, the Mosaic Theory, and the Fourth Modification, Volokh Conspiracy (Apr. 22, 2020, 5:Forty six AM), [].
the Massachusetts Supreme Judicial Court docket (SJC) in Commonwealth v. McCarthy413×413. 142 N.E.3d 1090.
regarded as the surveillance’s length, surreptitiousness, and classes of recordsdata in its analysis.414×414. Identity. at 1099.
The SJC held that whereas “frequent employ” of ALPRs can constitute a search, the restricted employ thereof in this case didn’t.415×415. Identity. at 1095.
Given the case’s restricted info, McCarthy simply scratched the surface of ALPRs’ employ in Fourth Modification search doctrine. This commentary identifies functional realities of ALPRs that will advantage increased constitutional scrutiny in future cases, owing to the potentially indefinite length of ALPR recordsdata; the opaque, public-private nature of many ALPR databases; and the size and classes of recordsdata published by ALPR surveillance.

In early 2017, Barnstable police began to suspect Jason McCarthy of supplying heroin to a co-conspiring distributor in Cape Cod.416×416. Identity. at 1096.
As portion of their investigation, the police added McCarthy’s car to an ALPR hot list on February 1, 2017, to peep when and the way in which continuously the auto crossed the Bourne or Sagamore bridges onto the Cape.417×417. Identity. This recordsdata feeds into a database maintained, in Massachusetts, by the Government Office of Public Safety and Safety. Identity. at 1095. The Massachusetts Inform Police Division owns and maintains the ALPRs. Identity.
They furthermore tracked — both retroactively and prospectively — on every occasion the auto crossed the 2 bridges between December 1, 2016, and February 12, 2017.418×418. Identity. at 1096.
On February Eight, 2017, Barnstable police got an ALPR alert that McCarthy’s car used to be driven over the Sagamore Bridge onto the Cape; officers then tailed the defendant and the distributor to a meet-up level, the achieve the 2 met and rapidly departed, absent a physical commerce.419×419. Identity.
The police seen a the same interaction on February 22, 2017.420×420. Identity. at 1097.
Suspecting a heroin transaction, Barnstable police arrested both the distributor — discovering heroin on his particular person — and McCarthy.421×421. Identity.
McCarthy filed motions to suppress, inter alia, the ALPR recordsdata, which a Apt Court docket deem denied.422×422. Identity.
He then pursued an interlocutory charm in the SJC, arguing that the police’s employ of ALPRs constituted a search under the Fourth Modification of the U.S. Constitution423×423. U.S. Const. amend. IV.
or article 14 of the Massachusetts Declaration of Rights.424×424. Mass. Const. pt. 1, art. XIV; McCarthy, 142 N.E.3d at 1097.

Writing for the court, Justice Gaziano425×425. Justice Gaziano used to be joined by Chief Justice Gants and Justices Lenk, Lowy, Budd, Cypher, and Kafker.
utilized the Katz v. United States426×426. 389 U.S. 347 (1967).
take a look at,427×427. Identity. at 361 (Harlan, J., concurring).
concluding that even supposing the defendant had an cheap “expectation of privateness to your entire of his public movements, an interest which potentially will be implicated by the frequent employ of ALPRs, that interest is never any longer invaded by the restricted extent and employ of ALPR recordsdata in this case.”428×428. McCarthy, 142 N.E.3d at 1095 (emphases added).
In assessing privateness expectations over time, the “overarching aim” is to withhold “that level of privateness against authorities that existed when the Fourth Modification [and article 14 were] adopted.”429×429. Identity. at 1098 (quoting Commonwealth v. Almonor, A hundred and twenty N.E.3d 1183, 1200 (Mass. 2019) (Lenk, J., concurring)).
“[T]he underlying functions” are “to ‘web the privacies of lifestyles against arbitrary vitality,’ and to [curtail] ‘a too permeating police surveillance.’”430×430. Identity. (quoting Almonor, A hundred and twenty N.E.3d at 1200 (Lenk, J., concurring)).
On arbitrary vitality, the Framers sought to prevent British officials’ “warrantless rummaging” via the dwelling; likewise, police’s employ of “advanced digital trails and trouble recordsdata” desires to be restricted straight away time.431×431. Identity. at 1099.
Moreover, the dilapidated protections against “a too permeating police surveillance”432×432. Identity. (quoting Chippie v. United States, 138 S. Ct. 2206, 2214 (2018)).
— functional and logistical constraints433×433. Gape id.
— are no longer as salient with straight away time’s evolved surveillance applied sciences. With these Founding-generation guidelines in suggestions, the court identified three means wherein in vogue surveillance would possibly perhaps perhaps perhaps exceed historical limits. The court analyzed (1) the hunt’s length, (2) its surreptitious nature, and (Three) the rating admission to it goes to grant to otherwise unknowable classes of recordsdata,434×434. Identity. at 1099–100.
which involves the police’s newfound ability both to examine precise-time trouble recordsdata and to “shuttle abet in time to retrace an particular person’s whereabouts.”435×435. Identity. at 1100 (quoting Chippie, 138 S. Ct. at 2210).

The court then analyzed whether ALPRs’ employ would possibly perhaps perhaps perhaps constitute a Fourth Modification search under Katz, in dialog with United States v. Jones436×436. 565 U.S. 400 (2012) (inspecting GPS employ in the Fourth Modification context).
and Chippie v. United States.437×437. 138 S. Ct. 2206 (inspecting cell-set trouble recordsdata employ); McCarthy, 142 N.E.3d at 1100–06.
Items “knowingly uncovered” to the public, fancy license plates, are usually unprotected;438×438. McCarthy, 142 N.E.3d at 1101.
and these touring in autos “on public thoroughfares” lack web privateness interests in their “movements from one achieve to one other,” that’s, “on a single drag.”439×439. Identity. (quoting United States v. Knotts, 460 U.S. 276, 281 (1983)).
However, as Chippie clarified, folks possess web privateness interests “in the total of their physical movements,”440×440. Chippie, 138 S. Ct. at 2217 (emphasis added).
which, even supposing “personally public, are no longer knowingly uncovered in the mix.”441×441. McCarthy, 142 N.E.3d at 1103 (citing Katz v. United States, 389 U.S. 347, 351 (1967)).
In embracing this aggregation theory,442×442. That is, constitutionally web privateness interests would possibly perhaps perhaps perhaps very neatly be implicated the achieve recordsdata got is sufficiently cumulative in the mix. Identity. at 1102–03; survey also id. at 1102 & n.10 (citing Orin S. Kerr, The Mosaic Theory of the Fourth Modification, 111 Mich. L. Rev. 311, 320 (2012)).
the court explained that twenty-four-hour “dragnet-form” surveillance,443×443. Identity. at 1101 (quoting Knotts, 460 U.S. at 284).
if it befell, would possibly perhaps perhaps perhaps encroach upon web privateness interests “because your entire unearths way over the sum of the parts.”444×444. Identity. at 1103. In inspecting whether “sustained electronic monitoring” by evolved applied sciences unearths too a lot, courts also take into narrative whether original visual surveillance would possibly perhaps perhaps perhaps function the identical consequence. Gape id. at 1102.

If ALPR technology produces a detailed-sufficient portray to whisper a mosaic of 1’s day-to-day lifestyles, the court reasoned, its employ would possibly perhaps perhaps perhaps constitute a search under the Fourth Modification and article 14.445×445. Gape id. at 1103. Rate that the aggregation theory applies no longer simply to the ALPR-related materials that the authorities needs to introduce into proof, but also to “the amount of recordsdata that the authorities collects or to which it features rating admission to” via ALPRs in the first occasion. Identity.
Justice Gaziano thus concluded that “[w]ith sufficient cameras in sufficient areas, the ancient trouble recordsdata from an ALPR system in Massachusetts would invade an cheap expectation of privateness.”446×446. Identity. at 1104.
The surveillance’s length, surreptitiousness, and the classes of recordsdata it unveils to regulation enforcement all weigh in the analysis, as function ALPRs’ placement.447×447. Gape id. That is, placement “cease to constitutionally sensitive areas,” equivalent to residences or locations of take care of, would possibly perhaps perhaps perhaps impermissibly “implicate expressive and associative rights.” Identity.

In this case, on the opposite hand, most productive four cameras had been deployed, at two mounted areas, on two discrete bridges, to surveil McCarthy’s movements over a two-and-a-half of-month length.448×448. Identity. at 1106.
Whereas the court declined to stipulate the line at which ALPRs’ employ “invoke[s] constitutional protections,” Justice Gaziano wrote, “it’s miles never any longer [this].”449×449. Identity.
The surveillance used to be sufficiently restricted to prevent the authorities from “video show[ing] your entire of [McCarthy’s] public movements,” offering merely “a restricted portray” thereof.450×450. Gape id.
The court held that whereas extra extensive utilization of ALPR technology would possibly perhaps perhaps perhaps constitute a search, in this case the restricted employ thereof didn’t, asserting the reveal under.451×451. Identity. at 1106, 1109. The court disposed of McCarthy’s good claims. Gape id. at 1106–08.

Chief Justice Gants concurred, agreeing that if the guidelines had been got “from sufficient [ALPRs] in sufficient areas,” the ensuing mosaic would possibly perhaps perhaps perhaps possess constituted a search; and he declined to promulgate a sparkling-line rule as to when that threshold will be passed.452×452. Identity. at 1109 (Gants, C.J., concurring).
He as an different proposed a Terry-fancy453×453. Gape Terry v. Ohio, 392 U.S. 1, 21 (1968).
analytical framework for ALPR cases, with “two locational mosaic thresholds.”454×454. Gape McCarthy, 142 N.E.3d at 1110 (Gants, C.J., concurring).
The principle used to be a “lesser threshold” for ALPR uses revealing a lesser portray of 1’s movements; it “would possibly perhaps perhaps perhaps very neatly be permissibly crossed with a court reveal supported by an affidavit exhibiting cheap suspicion” (the same to a Terry cease).455×455. Identity.
The 2d used to be “a increased threshold [requiring] a search warrant [and] probable cause.”456×456. Identity.
He argued that this framework would aid regulation enforcement and reviewing courts, which can make a choice whether the search recordsdata from published too a lot in the mix and, additional, whether the affidavit would possibly perhaps perhaps perhaps possess supported probable cause — rendering the proof admissible.457×457. Gape id.

In reviewing this case of first influence, the McCarthy court began the doctrinal dialog about whether employ of ALPRs would possibly perhaps perhaps perhaps constitute a search under the Katz privateness take a look at, as suggested by Jones and Chippie. The court identified three relevant factors: length, surreptitiousness, and rating admission to to new classes of recordsdata.458×458. Identity. at 1098–ninety 9 (majority belief).
A more in-depth leer at the technology’s functional realities, on the opposite hand, unearths that ALPRs pre-despatched extraordinary privateness concerns, previous these analyzed in Jones and Chippie in the GPS and cell-set trouble recordsdata (CSLI) contexts. In future cases, ALPR employ would possibly perhaps perhaps perhaps advantage increased constitutional scrutiny, given the technology’s potentially indefinite length; surreptitious, public-private nature; and facilitation of rating admission to to new classes of recordsdata, on an unprecedented scale.

First, ALPRs would possibly perhaps perhaps perhaps threaten cheap expectations of privateness in their potentially indefinite length of recordsdata collection and retention. GPS and CSLI recordsdata are on the entire got by regulation enforcement post hoc,459×459. Gape Kerr, supra uncover 33, at 330–33.
for somewhat restricted time sessions,460×460. Gape United States v. Jones, 565 U.S. 400, 412 (2012) (Alito, J., concurring) (arguing that a four-week investigation used to be “absolutely” prolonged sufficient to constitute a search in the GPS recordsdata context); cf. id. at 415 (Sotomayor, J., concurring) (agreeing with Justice Alito, and his three cosigning Justices for a crammed with five, that “long term GPS [surveillance] impinges on expectations of privateness”). But survey McCarthy, 142 N.E.3d at 1105–06 (maintaining a two- to three-month length of ALPR recordsdata collection to be permissible, suggesting additional apparent durational differences between the applied sciences).
and, for CSLI, with a somewhat short recordsdata retention length.461×461. Gape, e.g., Clutch Pegoraro, Apple and Google Remind You About Space Privacy, But Don’t Neglect Your Wireless Provider, USA This day (Nov. 23, 2019, 6:00 AM), lot-function-wireless-carriers-succor/4257759002 [] (noting CSLI recordsdata’s one- to 5-year retention sessions).
ALPRs can send precise-time alerts with contemporaneous trouble recordsdata, restful robotically and barely; and additionally they are going to duvet both prospective and retrospective sessions, spanning abet for potentially years, if no longer decades.462×462. That is, ALPRs robotically and barely narrative snapshots of each and every passing vehicle plate; examine CSLI or GPS gadgets, that are inclined to trace folks’ movements over extra discrete sessions of time. Gape Stephanie Foster, Rate, Ought to serene the Utilize of Computerized License Plate Readers Inform a Search After Chippie v. United States?, ninety seven Wash. U. L. Rev. 221, 239 (2019).
The ALPR database in McCarthy used to be owned and operated by Massachusetts dispute companies, with a one-year recordsdata retention coverage for historical recordsdata.463×463. Gape McCarthy, 142 N.E.3d at 1096. But survey id. at n.Three (noting a lack of analogous restrictions for precise-time alerts — that’s, “[emails] despatched after a precise-time alert would possibly perhaps perhaps perhaps very neatly be retained . . . indefinitely”).
Whereas the authorities’s own ALPR cameras would possibly perhaps perhaps perhaps embody procedural safeguards — in conjunction with transparency requirements, recordsdata retention boundaries, and other democratically accepted insurance policies — these of the non-public sector would possibly perhaps perhaps perhaps no longer.464×464. Dave Maass, The Four Flavors of Computerized License Plate Reader Skills, Elec. Frontier Came upon. (Apr. 6, 2017), [].
Critically, when private-sector ALPR firms accumulate and retailer ALPR recordsdata indefinitely, that recordsdata would possibly perhaps perhaps perhaps became accessible to contracting regulation enforcement companies that subscribe to these much less rights-maintaining databases.465×465. Gape id.; survey also LPR Utilization and Privacy Policy, Vigilant Sols., [] (explaining that one firm maintains its private ALPR recordsdata “as prolonged as it has industrial price”).
To the extent that courts possess ruled it “objectively cheap . . . to search recordsdata from to be free from sustained elec-tronic monitoring” of your entire of 1’s public movements,466×466. Gape McCarthy, 142 N.E.3d at 1102 (citing cases in the CSLI context).
regulation enforcement’s rating admission to to indefinite (and theoretically infinite), retroactive, contemporaneous, and prospective trouble recordsdata would possibly perhaps perhaps perhaps certainly signify the “dragnet-form” regulation enforcement that the McCarthy court feared.

Second, the surreptitiousness of ALPR technology would possibly perhaps perhaps perhaps likewise prolong previous that identified by the McCarthy court,467×467. Gape id. at 1099–100.
every other time owing to ALPR databases’ mutually constitutive public-private nature. One illustrative example concerns Vaas World Holdings, Inc. (Vaas), a private corporation whose networks mixture scans from ALPR cameras stationed right via the country into extensive ALPR databases.468×468. Gape Julia M. Brooks, Drawing the Strains: Regulation of Computerized License Plate Readers in Virginia, 25 Rich. J.L. & Tech. 1, 10 (2019).
Law enforcement companies can subscribe to one amongst Vaas’s networks, Vigilant Solutions,469×469. Gape id.
which is without doubt one of many many nation’s greatest ALPR vendors.470×470. Avenue-Stage Surveillance: Computerized License Plate Readers (ALPRs), Elec. Frontier Came upon., [].
Vigilant Solutions sells to police departments rating admission to to a database containing over five billion ALPR scans restful nationwide, about 1.5 billion of which originate from other regulation enforcement companies.471×471. Ángel Díaz & Rachel Levinson-Waldman, Computerized License Plate Readers: Upright Plan and Policy Suggestions for Law Enforcement Utilize, Brennan Ctr. for Upright. (Sept. 10, 2020), taught-experiences/automatic-license-plate-readers-steady-achieve of abode-and-coverage-suggestions [].
This “creates a revolving door of vehicle plate scans from regulation enforcement to Vigilant Solutions abet to regulation enforcement companies.”472×472. Identity.
Considerations of surreptitiousness that arise from this contractual system prolong previous the public’s probable lack of consciousness as to its workings or its existence. First, transparency and procedural safeguards (e.g., recordsdata retention boundaries) would possibly perhaps perhaps perhaps very neatly be lacking altogether in private vendors’ ALPR databases.473×473. Gape Maass, supra uncover fifty five.
Second, vendor contracts with private ALPR firms would possibly perhaps perhaps perhaps prohibit regulation enforcement from disclosing to the public their employ of the ALPR surveillance systems’ private databases, even if they significant to.474×474. Gape, e.g., Vigilant Solutions, Inform and Native Law Enforcement Company Settlement § four(d)–(e) (2016), [].
ALPRs fluctuate in this way from GPS gadgets, which desires to be bodily placed onto targets’ persons, autos, or assets, and CSLI, which usually desires to be got from targets’ cell phone firms via warrants.475×475. Gape, e.g., Díaz & Levinson-Waldman, supra uncover 62.
ALPRs, on the opposite hand, can surreptitiously accumulate and distribute an untold aggregation of folks’ trouble recordsdata — no longer most productive over a potentially indefinite length, but also right via the country, in ways likely unknown to the classic public. Feeble surveillance would possibly perhaps perhaps perhaps no longer furtively rating such a huge breadth of recordsdata, heightening constitutional privateness concerns additional serene.

1/Three, even supposing unapparent from this case, ALPRs fluctuate from their doctrinal predecessors in the size and classes of recordsdata on which they are going to accumulate recordsdata. CSLI arguably invokes constitutionally web classes of recordsdata insofar as cell phones are on the entire carried on the aim’s particular person, thereby following her in and round historically web areas, such because the dwelling, locations of take care of, and other locations of affiliation.476×476. Gape, e.g., McCarthy, 142 N.E.3d at 1109 (Gants, C.J., concurring); Chippie v. United States, 138 S. Ct. 2206, 2217 (2018).
GPS gadgets — affixed proximately to folks’ autos, persons, or assets — uncover analogous concerns.477×477. Gape United States v. Jones, 565 U.S. 400, 415 (2012) (Sotomayor, J., concurring); survey also Commonwealth v. Mora, a hundred and fifty N.E.3d 297, 303, 308 (Mass. 2020) (maintaining that focused digicam surveillance of the dwelling gifts the same concerns as function GPS and CSLI).
ALPRs, by inequity, would possibly perhaps perhaps perhaps seem much less intrusive in the starting achieve blush: they’re infrequently stationary gadgets located on avenue poles, traffic lights, parkway exit ramps, and the frilly — that’s, historically unprotected478×478. Gape Foster, supra uncover fifty three, at 222–23.
public streets.479×479. Gape Maass, supra uncover fifty five.
Semistationary ALPR cameras — which regulation enforcement would possibly perhaps perhaps perhaps achieve in strategic areas, fancy monitored parking heaps — are likewise in actuality immobile right via the specified length of surveillance; and mobile ALPR cameras are on the entire affixed to police patrol autos or surveillance autos, no longer to a aim’s particular person.480×480. Gape id.; survey also Foster, supra uncover fifty three, at 221.
Whereas mobile ALPRs can adjust to an particular person to trace her movements, this disclose on occasion differs from that of peculiar surveillance (no new classes of recordsdata right here).481×481. Cell ALPR surveillance differs insofar as Fourth Modification interests of nontargeted folks are concerned, but much less so in terms of recording the vehicle plate of a focused particular person in the police officer’s proximity. That is, whereas a police officer in dilapidated surveillance would possibly perhaps perhaps perhaps theoretically — but, in observe, likely will now not — narrative the license plates of each and each other (nontargeted, and hence presumably lacking in individuated suspicion) car in the achieve of abode, mobile ALPRs robotically narrative up to 1,800 license plates per minute, taking pictures all these in the neighborhood without stay, motive, or circumscription. Gape Foster, supra uncover fifty three, at 226.
In this sense, ALPRs would possibly perhaps perhaps perhaps very neatly be unlikely to rating an surprisingly extensive scale of recordsdata on one’s movements in the vogue that CSLI and other extra aim-proximate and mobile kinds of trouble-essentially essentially based monitoring would possibly perhaps perhaps perhaps function.482×482. Gape McCarthy, 142 N.E.3d at 1102. It’s certainly the case that ALPRs would possibly perhaps perhaps perhaps music, because the McCarthy court notes, folks’ movements over a extra big achieve of abode and length, incomparable to that in a position to being assessed by original surveillance. This level is taken up under.
In this case, four stationary cameras affixed to 2 bridges on public highway overpasses didn’t impermissibly invade McCarthy’s cheap privateness expectations.483×483. Gape id. at 1105–06.
On McCarthy’s info, ALPR technology would possibly perhaps perhaps perhaps seem much less invasive than other kinds of monitoring, as concerns the size of the classes-of-recordsdata ingredient.

On the different hand, the mix of ALPR recordsdata right via authorities companies and the non-public sector underscores no longer most productive the unprecedented durational classes of recordsdata that ALPRs uncover, but also the tools’ unpleasant-jurisdictional recordsdata-sharing penalties. In McCarthy, a dispute company managed the ALPR databases for cameras owned and operated by the dispute police.484×484. Identity. at 1095.
But a main constitutional implication of the classes-of-recordsdata ingredient arises from the aforementioned functional integration of authorities companies’ local ALPR systems with these of the nationwide private sector.485×485. Gape, e.g., Maass, supra uncover fifty five.
Whereas one extraordinary category of recordsdata uncovered by ALPRs concerns regulation enforcement’s newfound ability to “shuttle abet in time,” the public-private nature of ALPRs extends this length to a potentially indefinite, nationwide, unpleasant-jurisdictional scale. Recordation and aggregation on such a huge scale would possibly perhaps perhaps perhaps enable the authorities “to examine, extra or much less at will, [individuals’] political and non secular beliefs, sexual habits, and loads of others” — the particular “dragnet” surveillance feared by the McCarthy court.486×486. McCarthy, 142 N.E.3d at 1102 (quoting United States v. Jones, 565 U.S. 400, 416 (2012) (Sotomayor, J., concurring)); survey also Commonwealth v. Mora, a hundred and fifty N.E.3d 297, 312 (Mass. 2020) (“The following mosaic is ‘a category of recordsdata [traditionally unavailable].’” (quotation overlooked)).
Of constitutional import, the size of recordsdata uncovered by such sweeping surveillance would possibly perhaps perhaps perhaps uncover “a highly detailed profile, no longer simply of the achieve we roam, but . . . of our associations — political, non secular, amicable and amorous . . . — [and] the sample of our effective and avocational pursuits.”487×487. McCarthy, 142 N.E.3d at 1103 (quoting Commonwealth v. Connolly, 913 N.E.2nd. 356, 377 (Mass. 2009) (Gants, J., concurring)).
Additional, “the most effective technique to make a choice out of [ALPR] surveillance is to succor away from the impacted achieve of abode, which can pose valuable hardships and be . . . unrealistic.”488×488. U.S. Dep’t of Hometown Sec., Privacy Impact Evaluate for the CBP License Plate Reader Skills 7 (2020); survey also Chippie v. United States, 138 S. Ct. 2206, 2220 (2018) (explaining that a cell phone is “necessary to participation in in vogue society”).
Though this scaling final consequence used to be no longer implicated by the info of McCarthy, it’s nonetheless germane when inspecting ALPRs under the KatzJonesChippie framework going forward.

Overall, in conducting its truth-speak analysis on ALPR employ in this case, the McCarthy court simply scratched the surface of the broader implications of ALPR technology in Fourth Modification search doctrine. ALPRs’ functional realities elevate concerns referring to these databases’ potentially indefinite length, lack of transparency in their public-private nature, and facilitation of rating admission to to new classes of recordsdata on an unprecedented scale. ALPRs’ employ attributable to this truth would possibly perhaps perhaps perhaps advantage increased constitutional scrutiny in future Fourth Modification cases.