The Fourth Amendment’s Future

Shortly after the Supreme Court issued its decision in US v. Jones, my (former) colleague Micah and I — who had written much of the brief together — reflected on the decision’s implications for Fourth Amendment law in a post on the ACS blog titled “The Fourth Amendment’s Future.”  

While a number of people in the privacy community thought Jones didn’t go far enough (I recall Tom Goldstein, a prominent Supreme Court advocate, calling the decision a potential “nothingburger”) we argued the Jones opinion was important proof that the Fourth Amendment is resilient enough to survive technological change.  

Here’s what we wrote (original here), with some thoughts in hindsight:

The Fourth Amendment’s Future

In June of last year, Chief Judge Alex Kozinski and one of his law clerks wrote a eulogy for the Fourth Amendment, in which they mournfully concluded that “[w]ith so little left private, the Fourth Amendment is all but obsolete.” With the benefit of hindsight, it seems the eulogy may have been premature. On Monday, the Supreme Court handed down its decision in United States v. Jones, and unanimously held that the government violated Antoine Jones’s Fourth Amendment rights by surreptitiously monitoring his vehicle’s movements on public roads for four weeks. The Court’s decision is a ringing endorsement of the Fourth Amendment as a bulwark of liberty — and of the Amendment’s relevance to the surveillance technologies of the twenty-first century.

As members of Antoine Jones’s legal team in the Supreme Court, we thought we’d offer a few thoughts on the case and its implications. Given the significant amount of commentary that is already available on the blogosphere, we won’t dwell too much on the details. (For readers interested in a more granular analysis, we recommend Tom Goldstein’s post atSCOTUSblog. Or Orin Kerr’s several posts atThe Volokh Conspiracy. For readers interested in a broader overview, try Adam Liptak’s article in The New York Times.)

Prior to Jones, there were good reasons to believe the Fourth Amendment was dying. Since the Court decided Katz v. United States over forty years ago, the Amendment’s protections were commonly understood to apply only when the government intruded on a person’s subjective expectation of privacy that society would deem reasonable. The Court had never explicitly overruled earlier cases that pinned the Fourth Amendment to founding-era property concepts, but any commentator familiar with LaFave’s authoritative treatises would have been tempted to conclude that those cases had lost their vitality, or were, in legal jargon, no longer “good law.”

The problem was that at the same time it took on Fourth Amendment primacy, privacy was losing some of its power. This was in part because new and fast-changing technologies — think smart phones, sophisticated data mining techniques, and Google — were at once making our lives more and more convenient and less and less private. It was also perhaps because a new generation of Americans has come of age with Twitter and Facebook and YouTube, and many of us now have a much more complicated relationship with privacy. It’s a relationship that takes for granted that privacy might flourish even in public places, and even in information that has been shared with some people but not everyone. And it’s a relationship the law has been too quick to paint as a lack of any privacy at all.

Perhaps that’s in part what motivated the Court in Jones to write an opinion that ensures the Fourth Amendment would survive the death of the traditional notion of privacy. In a legally groundbreaking majority opinion for the Court, Justice Scalia wrote that the government engaged in a “search” simply because it committed “a physical intrusion of a constitutionally protected area in order to obtain information.” Finding that this “common-law trespass test” was enough to decide the case, the majority passed on applying the alternative “reasonable expectation of privacy test”— or what many would have thought was not the alternative test, but the only one.

It was left to Justice Alito, in an opinion concurring in the judgment, to apply Katz’s privacy-based test to the government conduct. He concluded that the 28-day surveillance of Jones’s movements on public streets was enough to violate Jones’s reasonable expectation of privacy.  Justice Sotomayor embraced both Justice Scalia’s and, to some extent, Justice Alito’s opinions, and wrote a potentially pathmarking concurrence that explained how the reasonable expectation of privacy test should be applied to future technologies and cases. Notably, Justices Alito and Sotomayor recognized that privacy does not wither in public, and Justice Sotomayor went so far as to say that Fourth Amendment jurisprudence should “cease to treat secrecy as a prerequisite for privacy.”

Taken together, these three opinions create what we might call a “big tent” approach to the Fourth Amendment, which should attract both property and privacy rights enthusiasts. It effectively creates a two-step test that lower courts must apply to determine whether a particular government conduct is a Fourth Amendment “search.” First, courts should ask whether the government obtained information through an act amounting to a physical intrusion of a constitutionally protected area — an individual’s person, home, papers, or effects. Such a trespass is presumably always a search, regardless of the scope of the intrusion or the privacy interests at issue. Second, if there is no physical intrusion, court should apply the familiar reasonable expectation of privacy test from Katz, in light of the additional guidance from Justice Alito and Justice Sotomayor’s concurring opinions.

The biggest open question, of course, is how courts will apply these standards in future cases.  Only time will tell. But as several commentators have already noted, the Jones decision’s “big tent” approach leaves open many important questions about how the property- and privacy-based tests should be applied in new situations, particularly in those involving emerging surveillance technologies.

We predict that the fate of each of these tests is likely to be driven by the Justices who are perhaps least likely to be sympathetic to the interests the tests preserve.

On the one hand, Justice Alito has taken a leading role in articulating how privacy should be understood and applied in cases involving emerging technologies. It might be fair to say, however, that in comparison to the other Justices sympathetic to the privacy test — Justices Ginsburg, Breyer, Sotomayor, and Kagan — Justice Alito is the least likely to apply the test expansively in future cases. On the other hand, Justice Sotomayor has cast herself in a leading role in articulating how the Court’s new common-law trespass test should be understood and applied in future cases. As the fifth vote for the property-driven standard, she is likely to play an influential role in determining the test’s fate. And she is probably the least likely of the other Justices who have embraced the common-law trespass test — the Chief Justice and Justices Scalia, Kennedy, Thomas — to apply the property-centric test expansively.

Time holds many mysteries. The more nuanced view of privacy that Justices Alito and Sotomayor embraced might lead to a reasonable-expectation-of-privacy test that will survive technological advances. Or perhaps the common-law trespass test will serve as a critical backstop. But one thing was made clear on Monday: the Fourth Amendment is not yet ready to rest in peace.

With a couple year’s distance I think we were more or less right.  The Jones decision was not a “nothingburger.”  This is clear both from the Supreme Court’s application of Jones in subsequent cases, including Jardines, and from the continued attention the case has recieved in the legal academy.  

If the round up from this year’s PLSC papers is any indication, the Jones decision is also on the minds of academics and practitioners working at the forefront of privacy. My own paper at this year’s PLSC is no exception: it seeks to ground the Fourth Amendment’s flexibility in its text, history, and key Supreme Court precedent, including Jones.  More on that soon. 

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Some thoughts on Jardines and police intent

Yesterday the Supreme Court issued its opinion in Florida v. Jardines, its second case this term about how the police can use trained dogs to search for contraband.  I found the decision interesting for a number of reasons, not the least of which is the unconventional configuration of the majority opinion, which teams Justices Thomas and Scalia with Sotomayor, Kagan, and Ginsberg.

Below are some initial thoughts about the case, specifically, its implications for the rule against inquiring into police intent.  I’ll probably post more about the Court’s “implied license” argument—and specifically, its implications for the much maligned third party doctrine—in the coming days.

Facts and holding

The State of Florida filed charges of marijuana trafficking against Mr. Jardines after police used a drug dog to find marijuana plants inside his home.  Here are the facts as described in the syllabus:

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis.

Jardines challenged the search and the Supreme Court held in his favor, finding that the police officer’s conduct violated the Fourth Amendment.  As Kevin Russel of scotusblog eloquently explains, the Court’s rationale hinged on accepted rules governing when and why a member of the public can walk onto a homeowner’s property:  

While the public, including the police, generally have license to approach a house’s front door (for example, to leave a flier or ask the occupant to answer a question), that license does not include an invitation to bring a dog onto the porch to search for drugs.  If a member of the public did that, Justice Scalia observed, it would “inspire most of us to – well, call the police.”

While the Court’s holding seems straightforward enough, it is in tension with previous Supreme Court cases regarding the relevance of officer intent to the Fourth Amendment analysis.  

Is a police officer’s purpose or intent relevant to the Fourth Amendment analysis after Jardines?

It is black letter law that a police officer’s “[s]ubjective intent,” however improper, “does not make otherwise lawful conduct illegal or unconstitutional.”   The rule was established by the Supreme Court in Whren v. United States—and in practice, it makes it exceedingly difficult to bring a successful Fourth Amendment challenge to a stop or an arrest based on allegations of racial profiling or other improper motives.

The key language in the majority’s opinion in Jardines, which requires an inquiry into the “purpose” of an intrusion onto private property as part of the Fourth Amendment analysis, seems to be in tension with Whren’s no-purpose rule.  

Here’s a relevant passage from Jardines:

A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license [to enter the home] is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.[1]

In other words, the officer was free to walk onto Jardines’ porch with the right purpose—say, if all he wanted was to ask Jardines a few questions—but the Fourth Amendment made it unconstitutional for the officer to walk onto Jardines’ porch with the intent to use his dog to search for drugs (without a warrant).

This holding is difficult to reconcile with the holding from Whren, that “[s]ubjective intent does not make otherwise lawful conduct illegal or unconstitutional.” The government’s brief argued as much, but the Court denied the inconsistency:

The State points to our decisions holding that the subjective intent of the officer is irrelevant. See Ashcroft v. al-Kidd, 563 U. S. ___ (2011); Whren v. United States, 517 U. S. 806 (1996). But those cases merely hold that a stop or search that is objectively reasonable is not vitiated by the fact that the officer’s real reason for making the stop or search has nothing to do with the validating reason …

Here, however, the question before the court is precisely whether the officer’s conduct was an objectively reasonable search. As we have described, that depends upon whether the officers had an implied license to enter the porch, which in turn depends upon the purpose for which they entered. Here, their behavior objectively reveals a purpose to conduct a search, which is not what anyone would think he had license to do.

The Court’s attempt at distinguishing Whren is, to me, unpersuasive.  The Court asserts that officer intent matters when intent goes to the reasonableness of a search, as in Jardines, but not when intent is not relevant to the reasonableness of the search, as in Whren. 

But that begs the question.   The very issue the Court was asked to answer in Whren—and the government argued, the Court should answer in Jardines—is whether and when intent should be relevant to the reasonableness of a search.  The Court’s determination that intent was relevant in one case (Jardines) and not in the other (Whren) seems little more than ipse dixit.

Putting aside the Court’s reasoning, the bottom line is that the police officer’s actions were unconstitutional in Jardines precisely because his purpose was to search the home, implying that those same actions may have been constitutional if the officer had a different purpose.  (To be fair, this is not completely novel in the context of searches of the home, but more on this in my next post.)

In other words, the Supreme Court—first in Jones and now in Jardines—has been willing to make police intent or purpose (at least when that purpose is undisputed) relevant to the Fourth Amendment analysis in some cases: specifically, in cases where the reasonableness of the search depends on the scope of a “license” to enter a constitutionally protected area.  

In my next post, I’d like to explore whether the court’s “implied license” argument has any implications for the much-maligned third party doctrine.  Implied and express licenses arguably govern a great swath of information that we store in “the cloud”—from email to Facebook messages to Dropbox files.  If (and this is, admittedly, a big “if”) the scope of those licenses is relevant to whether, and for what purpose, a police officer or government official can request cloud data, then we may be in for a rethinking of some of the Court’s seminal Fourth Amendment jurisprudence.  But more on that later.


[1] Note that the Court here talks about the officer’s “purpose,” while the Court in Whren was concerned with the officer’s “intent.”  While there may be a colorable distinction between “purpose” and “intent” in this context, I’m not sure the distinction is relevant or that it would survive scrutiny. 

Supreme Court applies US v. Jones test in dog-sniff case

The Court applied the “a-trespass-to-collect-information-is-a-search” test from US v. Jones to hold that bringing a police canine to the door of a home is a “search” requiring a warrant.  

Initial thoughts: I worked on the Jones case when I was at O’Melveny & Myers, and my colleagues and I specifically included the trespass-as-search materials to get Scalia’s vote.  I would not have predicted that the test would one day be applied to a canine sniff case, but here we are.

There is still some tension in the Court — here between the concurring/dissenting justices and the majority—regarding when or whether to use the reasonable expectation of privacy test and when to use the trespass test.  

And among the justices who do apply the REOP test (the concurrence and the dissent), there is no agreement on whether the conduct here violated reasonable expectations of privacy.  Justice Kagan sees the dog-sniff as falling squarely under Kyllo, which involved the use of heat sensing technology to “see” into a house.  The dissenting justices disagree the intrusion was unreasonable. This disagreement, at least on administrability grouds, seems to vindicate the bright lines of Scalia’s trespass test.  

In sum, it’s another big Fourth Amendment case with a strange configuration of opinions and potentially far reaching consequences.  Welcome to privacy at the Supreme Court. 

Decision here: http://www.supremecourt.gov/opinions/12pdf/11-564_jifl.pdf

The syllabus:

Police took a drug-sniffing dog to Jardines’ front porch, where the dog gave a positive alert for narcotics. Based on the alert, the officers obtained a warrant for a search, which revealed marijuana plants; Jardines was charged with trafficking in cannabis. The Supreme Court of Florida approved the trial court’s decision to suppress the evidence, holding that the officers had engaged in a Fourth Amendment search unsupported by probable cause.

Held: The investigation of Jardines’ home was a “search” within the meaning of the Fourth Amendment. Pp. 3–10.
(a) When “the Government obtains information by physically intruding” on persons, houses, papers, or effects, “a ‘search’ within the original meaning of the Fourth Amendment” has “undoubtedly occurred.” United States v. Jones, 565 U. S. ___, ___, n. 3. Pp. 3–4.
(b) At the Fourth Amendment’s “very core” stands “the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.” Silverman v. United States, 365 U. S. 505, 511. The area “immediately surrounding and associated with the home”—the curtilage—is “part of the home itself for Fourth Amendment purposes.” Oliver v. United States, 466 U. S. 170, 180. The officers entered the curtilage here: The front porch is the classic exemplar of an area “to which the activity of home life extends.” Id., at 182, n. 12. Pp. 4–5.
(c) The officers’ entry was not explicitly or implicitly invited. Officers need not “shield their eyes” when passing by a home “on public thoroughfares,” California v. Ciraolo, 476 U. S. 207, 213, but “no man can set his foot upon his neighbour’s close without his leave,” Entick v. Carrington, 2 Wils. K. B. 275, 291, 95 Eng. Rep. 807, 817. A police officer not armed with a warrant may approach a home in hopes of speaking to its occupants, because that is “no more than any private citizen might do.” Kentucky v. King, 563 U. S. ___, ___. But the scope of a license is limited not only to a particular area but also to a specific purpose, and there is no customary invitation to enter the curtilage simply to conduct a search. Pp. 5–8.
(d) It is unnecessary to decide whether the officers violated Jardines’ expectation of privacy under Katz v. United States, 389 U. S. 347. Pp. 8–10.

73 So. 3d 34, affirmed.

SCALIA, J., delivered the opinion of the Court, in which THOMAS, GINSBURG, SOTOMAYOR, and KAGAN, JJ., joined. KAGAN, J., filed a concurring opinion, in which GINSBURG and SOTOMAYOR, JJ., joined. ALITO, J., filed a dissenting opinion, in which ROBERTS, C. J., and KENNEDY and BREYER, JJ., joined.

Supreme Court applies US v. Jones test in dog-sniff case