Here's a law-school hypothetical for you: Suppose a gang-banger is pulled over for having expired tags on his car. He has no driver's license, and records show that he has repeatedly driven without a license. The protocol in such situations is to impound the car to prevent him from driving unlicensed again, and the impoundment search reveals that he has guns hidden in the car. He is arrested, patted down, and his possessions seized to secure officer safety during his transportation and booking.
Now suppose that police officers take the gang-banger's car out of the impound yard and drive it around looking for his confederates and for more evidence against him. Can they use the car for this purpose?
If you're like most people, you probably think the answer is: "No." But can you say why?
In two cell-phone-seizure cases headed for Supreme Court argument this month, Ilya Shapiro and I have argued for a sharp delineation of the property right that government agents seize when they arrest a suspect and take control of his things. They may rightly seize possession of an article, but they may not therefore put that item to whatever use they please.
The first paragraph above describes the facts in Riley v. California, on which we briefed the Court last month. Government agents did not use Riley's car to further investigate him, but they twice used his cell phone to gather more evidence of his wrongful behavior.
Though they had properly seized the physical phone, they did not get a warrant to search the phone's contents, and we think that violates the Fourth Amendment. Phones today carry huge amounts of information that are equivalent to the papers, postal mail, books, drawings, and portraits of the founding era, which the Fourth Amendment was designed to protect.
The second case we filed in today. It's called United States v. Wurie, and it's a similar case, in which arresting officers seized an arrestee's flip-phone. After it received calls identified on the exterior display screen as coming from "my house," they opened his phone and looked to see what the number was so they could learn the address and take their investigation there. We argue that they were entitled to observe and take cognizance of the information the phone put in plain view, but having seized the phone didn't entitle them to use the phone for further investigation without a warrant---even though it seemed to provide easy access to interesting evidence.
They didn't get a warrant to search at Wurie's house either. They took his keys, which they had also seized upon his arrest, and used them to open the door to the vestibule of his duplex apartment, then test the lock on a second floor residence. The keys unlocked the door of the first-floor apartment, behind which was a woman and her baby.
Possession of those keys didn't entitle government agents to go use them on the doors of two houses, even to turn the locks and confirm or deny their suspicions about Wurie's residency.
The use of the keys is not an issue in the case, but it helps illustrate the difference between possession and use. When an item is taken from an arrestee in the interest of officer safety and preventing destruction of evidence, this does not entitle law enforcement officer's to use it any way they please. Government agent's use of Wurie's cell phone to investigate him was an additional seizure beyond the taking of possession that happened when he was arrested. It should have required a warrant because of the volume of personal and private information---digital papers and effects---that cell phones access and store.
It may be easier to argue that cell phones shouldn't be searched without a warrant because that violates a "reasonable expectation of privacy"---and it probably does---but that has not proven to be a constitutional test that courts can reliably administer. It is as likely to produce bad results as good ones because it puts judges in the role of making sweeping statements about societal values rather than determining the facts and law in individual cases.
If we can convince the Court to flex some atrophied property muscles and recognize the difference between taking possession of a thing and making use of it, this could be the basis of stronger Fourth Amendment law, in which the courts apply the terms of the law to the facts of cases rather than pronouncing rules based on soaring, untethered doctrine like the "reasonable expectation of privacy" test.
... and you're not following developments in Fourth Amendment law.
Jeffrey Toobin is the latest to claim that Smith v. Maryland settles the Fourth Amendment issues around the National Security Agency's acquisition of data about every call made in the United States. He even links to the text of the decision in a recent blog post.
The majority opinion in Smith did say that people don't have a reasonable expectation of privacy in phone records, but that rationale is weak, and the facts of Smith are inapposite to the present controversy. I think that's easily gathered from reading the case with awareness of legal currents.
Here's what happened in Smith:
On March 5, 1976, in Baltimore, Md., Patricia McDonough was robbed. She gave the police a description of the robber and of a 1975 Monte Carlo automobile she had observed near the scene of the crime. After the robbery, McDonough began receiving threatening and obscene phone calls from a man identifying himself as the robber. On one occasion, the caller asked that she step out on her front porch; she did so, and saw the 1975 Monte Carlo she had earlier described to police moving slowly past her home. On March 16, police spotted a man who met McDonough's description driving a 1975 Monte Carlo in her neighborhood. By tracing the license plate number, police learned that the car was registered in the name of petitioner, Michael Lee Smith.
The next day, the telephone company, at police request, installed a pen register at its central offices to record the numbers dialed from the telephone at petitioner's home. The police did not get a warrant or court order before having the pen register installed. The register revealed that on March 17 a call was placed from petitioner's home to McDonough's phone. On the basis of this and other evidence, the police obtained a warrant to search petitioner's residence. The search revealed that a page in petitioner's phone book was turned down to the name and number of Patricia McDonough; the phone book was seized. Petitioner was arrested, and a six-man lineup was held on March 19. McDonough identified petitioner as the man who had robbed her. (citations omitted)
It is not possible to argue honestly that the facts of Smith are anything like the NSA's bulk data collection. The police had weighty evidence implicating one man. The telephone company voluntarily applied a pen register, collecting analog information about the use of one phone line by that one suspect. I can't think of a factual situation that could be at a further extreme than NSA's telephone calling surveillance program.
Apologists for NSA spying have to rest their argument entirely on the Smith Court's conclusion that there is no "expectation of privacy" in phone dialing information. But this is an unsafe resting place for at least two reasons.
First, the Court decided the Smith case wrongly, misapplying the "reasonable expectation of privacy" test, as courts often do. Randy Barnett and I pointed this out in our recent brief to the Supreme Court:
Justice Blackmun inaccurately applied ["reasonable expectation"] doctrine. The question whether a person has an actual (subjective) expectation of privacy is a question of fact, but the Court treated it as an objective question, denying the possibility of such an expectation. (“[I]t is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.”) Having misapplied the subjective part of the Katz test, the Court appears also to have botched the objective part. Justice Blackmun marshaled arguments for the position that an expectation of privacy is unreasonable, but made no comparing or contrasting mention of counterarguments. Most likely, he treated the objective part of the Katz test subjectively, universalizing his own opinion as though it were the one true opinion on privacy around telephone dialing information. (citations omitted)
But more importantly, the Supreme Court is moving away from the "reasonable expectation of privacy" test entirely. In major Fourth Amendment decisions like Kyllo (2001) and Jones (2012), the Court did not use the "reasonable expectation of privacy" test to examine scanning of a home with a thermal imager and tracking of a vehicle with a GPS device. (Both require a warrant.) In Jardines, decided last term, the Court did not use the "reasonable expectation of privacy" test in finding that walking a drug-sniffing dog to the front door of a home was a Fourth Amendment search also requiring a warrant. As I said in a blog post about this minor victory for the Fourth Amendment, "Any case is a good case if it declines to use the failed 'reasonable expectation of privacy' doctrine."
So, does Smith dispense with our Fourth Amendment interests in phone dialing information? Here's what Justice Sotomayor said about that in Jones:
[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.... I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
I'm going to do you a favor here: Don't bet on Smith v. Maryland.
The Supreme Court ruled today in Florida v. Jardines that "use of trained police dogs to investigate the home and its immediate surroundings is a 'search' within the meaning of the Fourth Amendment."
It's the right result. The Court was divided 5-4, though, and the case shows some of the same fissures around Fourth Amendment doctrine that U.S. v. Jones did last year.
The majority opinion, written by Justice Scalia, won't clear up the doctrinal debates, which are sure to continue. Instead, it retreats to the home. The specific protection for "houses" in the Fourth Amendment, he wrote:
renders this case a straightforward one. The officers were gathering information in an area belonging to Jardines and immediately surrounding his house—in the curtilage of the house, which we have held enjoys protection as part of the home itself. And they gathered that information by physically entering and occupying the area to engage in conduct not explicitly or implicitly permitted by the homeowner.
Property law gives strangers an implied license to approach a house for the variety of purposes they may have. "But introducing a trained police dog to explore the area around the home in hopes of discovering incriminating evidence is something else. There is no customary invitation to do that."
Justice Scalia did use the case to answer a question left open by Jones. He emphasized that the "reasonable expectation of privacy" test from Katz v. United States (1967) built upon, and did not supplant, the Fourth Amendment's foundation in property. He specifically declined to use that test in the holding.
The dissent objected vigorously to the idea that approaching the front door of a home via the walk was a trespass.
"[G]athering evidence—even damning evidence—is a lawful activity that falls within the scope of the license to approach," Justice Alito wrote. "And when officers walk up to the front door of a house, they are permitted to see, hear, and smell whatever can be detected from a lawful vantage point."
The dissent also rejected an argument put forward by the concurrence: that the reasonable expectation of privacy test is an alternative ground for the holding.
Yes, Justice Kagan would also have used "reasonable expectations" to decide the case, but her concurrence covers more important ground than that. As she did at oral argument, she fixed on the government's use of the dog to perceive things that couldn't otherwise be perceived. That's what searching is.
"[P]olice officers came to Joelis Jardines’ door with a super-sensitive instrument, which they deployed to detect things inside that they could not perceive unassisted." And later: "[A] drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell)."
In the Cato Institute's brief in the case, I emphasized that drug-dog detection was but one form of chromatography, the use of which the court should treat as searching because it "look[s] for or seek[s] out that which is otherwise concealed from view” (quoting Black’s Law Dictionary).
I also emphasized the poorly recognized twin-relationship in Fourth Amendment doctrine between "plain view" and constitutional searching: "A 'search' occurs when government agents seek out that which is otherwise concealed from view, the opposite condition from what pertains when something is in 'plain view.'"
And I argued: "This Court should find a 'search' to have occurred in this case because the use of a drug-sniffing dog made perceptible to government agents what they otherwise could not perceive."
I'm gratified to see Justice Kagan, joined by justices Ginsburg and Sotomayor, adopt this reasoning, whatever its source. The Court's women, it seems, have the best Fourth Amendment reasoning in this case.
The result today is clearly favorable for Joelis Jardines and mildly favorable for Fourth Amendment doctrine. Any case is a good case if it declines to use the failed "reasonable expectation of privacy" doctrine. And, as was the case in Jones, the concurrence is where the real action is.
This week, the Supreme Court considered whether collecting DNA from an arrestee was an unreasonable Fourth Amendment search.
Or at least that would have been a good way for the Court to frame the question.
Instead, much of the oral argument in Maryland v. King dealt with the question whether swabbing the cheek of an arrestee to take a DNA sample upsets one's reasonable expectations of privacy. The "reasonable expectation of privacy" test is doctrine that arose from Justice Harlan's concurrence in Katz v. United States. The test asks whether a person claiming the Fourth Amendment's protections had a subjective expectation of privacy and whether it is "one that society is prepared to recognize as 'reasonable.'"
The government's case rests on that framing, which is why Deputy Solicitor General Michael Dreeben began his argument by saying that arrestees are "on the gateway into the criminal justice system. They are no longer like free citizens who are wandering around on the streets retaining full impact Fourth Amendment rights. The arrest itself substantially reduces the individual's expectation of privacy."
It's true that an arrestee has his privacy and other liberties invaded various ways. What problem is it if a bit of DNA is collected at the same time? It's pretty much like finger printing, the argument goes...
The "reasonable expectation" test is almost never faithfully followed by courts. My guess is that the Court will not assess whether King himself actually expected "privacy." That would encompass everything from believing that none of his mucus membranes would be collected by a government agent, to believing that his genetic material would neither be analyzed nor preserved in a Maryland lab for further analysis somewhere in an uncertain future.
When it applies the objective part of the test, there is a chance, but I'll be surprised if any justice actually examines the difference in experience between fingerprinting and DNA collection, such as by comparing the slim privacy invasion when one person touches another's hands to the real invasion that occurs when a person puts something in another person's mouth. Doing so in its exercise of free-form interest balancing could, but probably wouldn't, overcome the government's interest in using "the fingerprinting of the 21st Century" to catch crooks.
Rather than using doctrine and making policy judgments, the Court should assess the government's actions as the Fourth Amendment commands. The law does not invite the Court to examinine what people may or may not think about "privacy." It bars the government from committing unreasonable searches and seizures.
If one examines the case guided by the words of the Fourth Amendment, what happened is far more clear. Taking a bodily specimen from Alonzo King was, in natural language, a seizure. Processing that specimen to create an identity profile was a further examination, bringing otherwise concealed information into law enforcement's view. And comparing King's identity profile to cold-case profiles was incontrovertibly looking for something. This is all searching using that seized bodily material.
Now, was the search reasonable?
Having been picked up on a variety of assault charges, King's mouth was swabbed and his DNA taken, processed, and used to investigate whether genetic material matching his was associated with any other cases. It's the equivalent of taking keys on the person of an arrestee and looking through his house for evidence of other crimes. There was no relationship between King's alleged wrongdoing and the investigation conducted using his DNA.
Perhaps it is reasonable to conduct a free-form search into the biography of a person who has been arrested--that is, a person about which a law enforcement officer says he has probable cause to arrest--but it is unlikely. The Fourth Amendment's particularity requirement suggests that it is unreasonable to investigate a person arrested for one crime to see what other, unrelated crimes he may have committed.
Counsel for the State of Maryland rested her argument heavily on the use of information about other crimes in bail decisions. This falls apart under the same logic, unless the Court is going to produce a rule that the Fourth Amendment allows the government carte blanche to search and seize when a bail hearing is pending. And the DNA results came back months after Alonzo King's arraignment.
The Supreme Court heard oral argument yesterday in Florida v. Jardines, a case that examined whether bringing a drug-sniffing dog to the front door of a home looking for drugs was a Fourth Amendment search.
Having attended the oral argument (transcript; audio forthcoming), my sense is that a majority on the Court thinks dog-sniffs at front doors (absent a warrant) go too far. But few of the justices know why. The one who does is Justice Kagan.
What rationale might the Court use to decide the case? Even after United States v. Jones threw open Fourth Amendment doctrine, the instinct for using "reasonable expectation of privacy" analysis is strong. (I've joked that many lawyers think the word "privacy" can't be uttered without the prefix "reasonable expectation of.") This is where much of the discussion focused, and Justice Breyer seemed the most firmly committed to its use.
But the insufficiency of "reasonable expectation" doctrine for providing a decision rule was apparent when Breyer teed up Jardines's counsel to knock the case out of the park. There was much discussion of what one reasonably expects at the front door of a home. Neighbors may come up. Trick-or-treaters may come up. Neighbors may come up with their dogs. The police may come to the door for a "knock and talk." Neighbors, trick-or-treaters, dogs, and police officers may all come up and discover odors coming from the house. What makes the drug-sniffing dog unexpected?, Justice Breyer asked:
Do in fact policemen, like other people, come up and breathe? Yes. Do we expect it? Yes, we expect people to come up and breathe. But do we expect them to do what happened here? And at that point, I get into the question: What happened here?
Joelis Jardines's counsel could not say what made the dog unexpected.
Perhaps property law draws the line that excludes government agents with drug-sniffing dogs, while allowing other visitors to come to the door. Not so. Justice Alito in particular pressed Jardines's counsel for any case that had excluded dogs (drug-sniffing or otherwise) from the implied consent one gives to visitors on the walk and at the front door. The argument is unavailing, this idea that Florida's property law (put into play by the majority holding in Jones, which relied on property rights) solve this case. Florida property law doesn't exclude dogs from the implied permission it gives to lawful visitors on residential property.
None of this is to say that the government had it easy. Florida's counsel had uttered just three sentences when Justice Kennedy informed him that the rule from Illinois v. Caballes would not carry the day. In Caballes, the Court found there to be no search at all when government agents walked a drug-sniffing dog around a car stopped for other reasons. (I attacked what I called the "Jacobsen/Caballes corollary" to the Katz decision in the Cato Institute's brief to the Court, and also in this Jurist commentary.)
It won't be the rule from Caballes. So what is the rationale that decides this case?
Justice Scalia was on the scent when he reasoned with the government's counsel about what might be done with binoculars.
"As I understand the law," he said, "the police are entitled to use binoculars to look into the house if---if the residents leave the blinds open, right?"
Florida's counsel agreed.
"But if they can't see clearly enough from a distance, they're not entitled to go onto the curtilage of the house, inside the gate, and use the binoculars from that vantage point, are they?"
"They're not, Your Honor."
"Why isn't it the same thing with the dog?"
Justice Kagan knows that it is. And she used Justice Scalia's reasoning in Kyllo v. United States, the precedent that is on all fours with this case.
She recited from Kyllo: "'We think that obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search, at least where, as here, the technology in question is not in general public use.'" And she asked Florida's counsel, "[W]hat part of that language does not apply in this case?"
"Franky's nose is not technology," he replied, referring to the dog. "It's---he's using---he's availing himself of God-given senses in the way that dogs have helped mankind for centuries."
The existence of dogs in human society for centuries might help the government if dogs had been used for drug-detection all this time. And then only if the question was what it is reasonable to expect.
What matters is that a drug-sniffing dog is indeed a form of sense-enhancing technology. Selected for its strong sense of smell, and trained to convey when particular odors are present, a drug-sniffing dog makes perceptible to law enforcement what is otherwise imperceptible.
And that is the very definition of searching. At least as Black's Law Dictionary has it: “‘Search’ consists of looking for or seeking out that which is otherwise concealed from view.”
Police officers use dogs to search for drugs and other materials in which they are interested but which they cannot see by themselves. A drug-sniffing dog is a cuddly chromatograph.
And just now, quietly, you have seen at work the rationale that the Supreme Court should use to decide Florida v. Jardines. Was it a search to bring a drug-sniffing dog to the front door of a house? The Court should apply the plain meaning of the word "search" to the facts of the case that has come before it. There's no need for doctrine at all.
The Supreme Court has delivered a big win for privacy in U.S. v. Jones. That's the case in which government agents placed a GPS device on a car and used it to track a person round-the-clock for four weeks. The question before the Court was whether the government may do this in the absence of a valid warrant. All nine justices say No.
That's big, important news. The Supreme Court will not allow developments in technology to outstrip constitutional protections the way it did in Olmstead.
Olmstead v. United States was a 1928 decision in which the Court held that there was no Fourth Amendment search or seizure involved in wiretapping because law enforcement made "no entry of the houses or offices of the defendants." It took 39 years for the Court to revisit that restrictive, property-based ruling and find that Fourth Amendment interests exist outside of buildings. "[T]he Fourth Amendment protects people, not places" went the famous line from Katz v. United States (1967), which has been the lodestar ever since.
For its good outcome, though, Katz has not served the Fourth Amendment and privacy very well. The Cato Institute's brief argued to the Court that the doctrine arising from Katz "is weak as a rule for deciding cases." As developed since 1967, "the 'reasonable expectation of privacy' test reverses the inquiry required by the Fourth Amendment and biases Fourth Amendment doctrine against privacy."
Without rejecting Katz and reasonable expectations, the Jones majority returned to property rights as a basis for Fourth Amendment protection. "The Government physically occupied private property for the purpose of obtaining information" when it attached a GPS device to a private vehicle and used it to gather information. This was a search that the government could not conduct without a valid warrant.
The property rationale for deciding the case had the support of five justices, led by Justice Scalia. The other four justices would have used "reasonable expectations" to decide the same way, so they concurred in the judgement but not the decision. They found many flaws in the use of property and "18th-century tort law" to decide the case.
Justice Sotomayor was explicit in supporting both rationales for protecting privacy. With Justice Scalia, she argued, "When the Government physically invades personal property to gather information, a search occurs." This language---more clear, and using the legal term of art "personal property," which Justica Scalia did not---would seem to encompass objects like cell phones, the crucial tool we use today to collect, maintain, and transport our digital effects. Justice Sotomayor emphasized in her separate concurrence that the majority did not reject Katz and "reasonable expectations" in using property as the grounds for this decision.
Justice Sotomayor also deserves special notice for mentioning the pernicious third-party doctrine. "[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." The third-party doctrine cuts against our Fourth Amendment interests in information we share with ISPs, email service providers, financial services providers, and so on. Reconsidering it is very necessary.
Justice Alito's concurrence is no ringing endorsement of the "reasonable expectation of privacy" test. But he and the justices joining him see many problems with applying Justice Scalia's property rationale as they interpreted it.
Along with the Scalia-authored Kyllo decision of 2001, Jones is a break from precedent. It may seem like a return to the past, but it is also a return to a foundation on which privacy can be more secure.
More commentary here in the coming days and weeks will explore the case's meaning more fully. Hopefully, more Supreme Court cases in coming years and decades will clarify and improve Fourth Amendment doctrine.
I attended the Supreme Court's oral argument in U.S. v. Jones today, the case dealing with the Fourth Amendment constitutionality of using GPS to track individuals' movements without a warrant. Predicting outcomes is fraught, and you're getting your money's worth from the following free observations.
It seemed to me that most members of the Court want to rule that the government does not have free reign to attach GPS devices to cars. Justices Kennedy, Breyer, and Sotomayor, for example, noted the vast consequences if the government were to win the case. Law enforcement could attach tracking devices to people's overcoats, for example, and monitor their movements throughout society without implicating the Fourth Amendment. Voluble as he often is, Justice Scalia did not say that the Fourth Amendment doesn't reach GPS because GPS data wasn't around for the Framers to insulate from government access.
Justice Alito's thinking seemed to venture the furthest. He noted how insufficient it would be if the Court were to decide the case based on the narrow ground that attaching a GPS device to a car is an unreasonable seizure. Doing so would not account for the vast amount of personal data the government might access without attaching something to a car, clothing, or other property. If not in this case, the Court will soon have to face the (pernicious) third-party doctrine, which holds that a person has no Fourth Amendment interests in information shared with others.
If the Court desires to rule against the government, the one thing it lacks is a rationale for doing so. When it was time for Jones's counsel to argue, the Justices seemed frustrated not to have a principle on which to base a decision.
Justice Scalia early-on declared his concern with GPS tracking and his dismay that the "reasonable expectation of privacy" test from Katz v. United States (1967) might shrink the zone of privacy the Framers sought to protect in the Fourth Amendment. But he later retreated into a sort of catch-all posture: the Congress can control GPS tracking if it wants. (Jones's counsel cleverly suggested that there were 535 reasons not to do that.)
Other Justices' questions danced awkwardly with the "reasonable expectation of privacy" test. Justice Kennedy was equivocal once about whether it would apply. Chief Justice Roberts seemed acutely aware of the Court's incompetence to make judgments of such broad societal sweep. This is for good reason: there is no way to determine what society thinks, or what is "reasonable" in terms of privacy, when new technologies are applied new ways.
The solution to this conundrum can be found in the Cato Institute's amicus brief in the Jones case. The Court should not use the "reasonable expectation of privacy" test from Justice Harlan's Katz concurrence. Rather, it should follow the majority holding, which accorded Fourth Amendment protection to information that Katz had kept private using physical and legal arrangements. The government stands in the same shoes as the general public when it comes to private information—that is, information that can't be accessed legally or with ordinary perception. When the government accesses information that was otherwise private, those searches and seizures must be reasonable and must almost always be based upon a warrant.
This way of administering the Fourth Amendment is not a snap of the fingers. There will be details to hash out when the Court eventually finds that having a Fourth Amendment interest in information turns on a factual question: whether someone has concealed information about him- or herself.
The biggest impediment to adoption of this rule may be getting lawyers to realize that "reasonable expectation of" is not a prefix required every time they use the word "privacy."