That test is rife with problems. To name a few: Courts almost never actually perform the first part of the test. The test turns the Fourth Amendment back on the people it is supposed to protect, examining the reasonableness of privacy preferences rather than the reasonableness of government searches. The test is circular: courts’ rulings set expectations for the public as much or more than they rely on people’s privacy sensibilities. And almost no court actually investigates what privacy people expect. The “reasonable expectation of privacy” test makes amateur sociologists of people whose strength is applying the law to facts. And when technology is involved, there may be no “true” expectations to rely on anyway.
In a new brief, Cato and the Rutherford Institute ask the Supreme Court to take up the case of Travis Tuggle, a man convicted of drug crimes after government agents video-recorded him and all activity around his house non-stop for 18 months. Tuggle argued that video capture of his every entry and exit, every visitor, and the things he and others carried amounted to a warrantless search. He lost in the lower courts, but the U.S. Court of Appeals for the Seventh Circuit openly doubted the result dictated by the “reasonable expectation of privacy” test.
The test operated on Tuggle as follows: People are routinely seen outside their houses, so a person cannot expect privacy in their comings and goings. If one cannot expect privacy in any given minute, multiplying that zero privacy expectation by 18 months still reaches zero privacy expectations.
Our brief asks the Court to examine more straightforwardly whether and when government action amounts to searching. To better position courts to administer “high-tech” cases, the Court should eschew doctrine and hew more closely to the language and meaning of the Fourth Amendment. Consistent with that text, courts should ask: Was there a search? A seizure? Was any search or seizure of their persons, houses, papers, or effects? Was any such search or seizure reasonable?
That word “search” has a common usage, as it did at the time of the framing. As the Supreme Court put it in a 2001 case, searching is activity that has the “purpose of finding something.” In a more recent case dealing with whether the government can search a cell phone properly seized from a suspect, the searches and seizures that gave the government access to the phone were disposed of handily using precedents that didn’t rely on “reasonable expectations.”
So the Court need not retreat to doctrine when the claim is that some form of technology has been searched or used for searching. It should merely dig deeper into whether the essence of searching is found in the behavior of government agents. In Tuggle, law enforcement video-recorded his every coming and going day and night for 18 months. This highly directed and persistent observation provided new facts about Mr. Tuggle’s activities and associations, and it permitted inferences about him and his activities inside the home.
In other words, the government looked over Mr. Tuggle and his house with a purpose of finding evidence. That’s a search.
