310
Stevens, J., dissenting
stantive due process lens, the substantive right protected is
the same.
When, however, the scope of the Fourth Amendment protection does not fully encompass the liberty interest at stake—as in this case—it is both unwise and unfair to place a blinder on the lens that focuses on the specific right being asserted. Although history teaches us that the Fourth and Fifth Amendments have been viewed "as running 'almost into each other,' " Mapp v. Ohio, 367 U. S., at 646, quoting Boyd v. United States, 116 U. S. 616, 630 (1886), and citing Entick v. Carrington, 19 How. St. Tr. 1029 (C. P. 1765), we have never previously thought that the area of overlapping protection should constrain the independent protection provided by either.
VII
Although Justice Souter leaves open the possibility that in some future case, a due process claim could be stated for a prosecution absent probable cause, he concludes that this is not such a case. He is persuaded that the federal remedy for Fourth Amendment violations provides an adequate justification for refusing to " 'break new ground' " by recognizing the "novel due process right" asserted by petitioner. Ante, at 287, 288. Like The Chief Justice, ante, at 271, 275, and Justice Ginsburg, ante, at 281, he points to Collins v. Harker Heights, 503 U. S. 115 (1992), as a pertinent example of our reluctance "to expand the concept of substantive due process . . . in [an] unchartered area." Id., at 125. Our relevant holding in that case was that a city's failure to provide an employee with a reasonably safe place to work did not violate the Federal Constitution. We unanimously characterized the petitioner's constitutional claim as "unprecedented." Id., at 127. The contrast between Collins and this case could not be more stark.
The lineage of the constitutional right asserted in this case dates back to the Magna Carta. See n. 2, supra. In an
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