reasonable expectation of privacy

The Fourth Amendment: Cars, Phones, and Keys?

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?

If You Think Smith v. Maryland Permits Mass Surveillance, You Haven’t Read Smith v. Maryland

… 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)

Jardines: The Supreme Court Retreats to the Home

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).

U.S. v. Jones: A Big Privacy Win

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.

U.S. v. Jones: The Court’s Search for a Rationale

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.

Will GPS Tracking Render the Fourth Amendment Quaint?

If the government put a GPS monitor on your car and used it to track every vehicular movement of yours for four weeks, do you think that would violate your Fourth Amendment rights? The government would like to be able to do that kind of thing without getting a warrant, and the Supreme Court will soon decide whether it can.

Revise the Maryland Wiretap Law?

As I said in this piece in the Baltimore Sun, Maryland police officers are misusing that state’s wiretap law to deter anyone who would film them performing their duties. Maryland officers have asserted that any audio recording of a conversation, even in a public place, is a violation of the state’s wiretapping law and a felony punishable by five years in prison and a $10,000 fine.

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