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"More Than One Way To Skin A 'Katz': How The U.S. Supreme Court Made The Katz Test--And Basic Privacy Rights--An Endangered Species" by Benjamin Pomerance

More Than One Way To Skin A Katz: How The U.S. Supreme Court Made The Katz Test--And Basic Privacy Rights--An Endangered Species
by Benjamin Pomerance

On a February afternoon in 1761, a young lawyer from the English colony of Massachusetts delivered one of the most impassioned addresses ever heard in a North American court of law. That lawyer, James Otis, Jr., was appearing in the Superior Court of Massachusetts without receiving one cent of payment from his clients, a group of Boston merchants. Instead, he was there to protest an edict from the Crown by which he felt he could no longer abide: a proclamation allowing any British officer the right to search for smuggled material within "any suspected premises" based on a "writ of assistance", a general warrant that required no showing that the officers actually suspected that contraband might be found in that particular location. As a consequence, British officers frequently peered into, entered, and ransacked colonial homes and businesses without any permission from their owners and without any true suspicion that smuggled goods could actually be found there. In Boston, Otis had repeatedly witnessed these invasions of privately owned locations by British law enforcement agents. And by the time he rose to speak on that February afternoon, he had seen enough. See James Otis: Against Writs of Assistance, NAT'L HUMANITIES INST., 1998, http://www.nhinet.org/ccs/docs/writs.htm.

"It appears to me the worst instrument of arbitrary power, the most destructive of English liberty and the fundamental principles of law, that ever was found in an English law-book," Otis proclaimed to the court. See id. Later, he illustrated how the writs of assistance permitted violations of one of the most fundamental concepts of English common law: the "freedom of one's house." "A man's house is his castle," he stated, "and whilst he is quiet, he is as well guarded as a prince in his castle. This writ, if it should be declared legal, would totally annihilate this privilege." Id.

Otis failed to win his case that day. Id. Yet his argument before the court helped to galvanize the revolutionary movement against oppressions by the British Crown. Id. It was no accident that in 1776, the Declaration of Independence included the following grievance against the King of England: "(He has) sent hither swarms of officers to harass our people and eat out their substance." THE DECLARATION OF INDEPENDENCE para. 12 (U.S. 1776). It was no accident that in 1780, Massachusetts included a provision in its new state constitution which declared that "[e]very subject has a right to be free from all unreasonable searches and seizures." MASSACHUSETTS DECLARATION OF RIGHTS, Art. XIV (1780). And it was no accident that on December 15, 1791, the thirteen American States ratified the Fourth Amendment to the United States Constitution, protecting against that governmental evil which Otis rightly feared. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," it reads, "shall not be violated."U.S. CONST. amend. IV.

Yet in the 220 years since that amendment was ratified, this constitutional guarantee -- so deeply rooted in the American fight for liberty -- has been at the center of some of the most confounding legal debates in this nation's history. In recent decades, it has become clear that even the nation's highest court cannot agree on what this amendment even means. And in a world that is clearly far different from the society in which the Fourth Amendment was written, burning questions abound regarding how to apply this constitutional provision in modern times.

Now, with the United States Supreme Court's recent decision in United States v. Jones, the nation is faced with yet another bifurcated interpretation of what protections the Fourth Amendment actually provides. And despite a unanimous holding by the Court, the three separate opinions delivered in this case strongly indicate that clarity over the Fourth Amendment's role is still a long way off. What is clear, however, is a truth that would make James Otis and the other colonists who suffered baseless British intrusions under the pretext of law enforcement shudder: our federal safeguards against unreasonable searches and seizures are weaker than they have been in decades, if not centuries. Supreme Court decisions have eroded the power of the Fourth Amendment for that last 40 years. Under a rationale to which four justices subscribed in Jones, citizen defenses against unconscionable government intrusions are now in danger of being set back to a level of toothlessness not seen since the 1920s.

This article briefly examines how we, a society that has scrutinized protections against unreasonable searches and seizures since at least 1761, have arrived at this point. Specifically, it provides an overview of the basic Fourth Amendment standard established through Supreme Court case law, and looks at how decisions over the past four decades have steadily whittled away at what this standard means for individual liberties. It then quickly looks at the Supreme Court's recent decision in Jones, with a focus on a viewpoint that could deal a tremendous blow to Fourth Amendment protections against government intrusions. Finally, it concludes with a short look at the potential implications of this rationale on a modern, technology-driven world.

What Does It All Mean? How The Supreme Court Has Decided To Define "Unreasonable" In The Search And Seizure Context

In general, searches and seizures without a warrant based on probable cause are inherently unreasonable, except under certain extreme circumstances, such as a legitimate law enforcement emergency. See, e.g., Katz v. United States, 389 U.S. 347, 357 (1967). The Supreme Court has recognized that this basic principle exists in order to prevent a "general, exploratory rummaging in a person's belongings" by law enforcement. See Andresen v. Maryland, 427 U.S. 463, 480 (1976).

Yet this fundamental premise is not as straightforward as it seems. While outwardly simple, it also produces some essential questions. For the purposes of this article, we will focus on two of them: What type of action constitutes a "search" and how do we know when a search is "unreasonable?" Traditionally, the Supreme Court has meshed these two definitions together. The way in which it does so, however, has far-reaching implications. If a particular activity is not determined to be a "search", then it can be conducted without the Fourth Amendment being implicated at all. This means that the government can take this action, no matter how intrusive, without probable cause -- and without any suspicion of wrongdoing whatsoever. Thus, types of activities that are not deemed to be searches deliver tremendous power into the hands of government law enforcement agencies, thereby placing paramount importance in the way a "search" is defined by the Court.

The Court made its first major statement in this area in 1928. In Olmstead v. United States, the justices determined that wiretaps attached by government agents to telephone wires did not qualify as a search for Fourth Amendment purposes. See 277 U.S. 438 (1928). In reaching this holding, the Court determined that since "[t]here was no entry of the houses or offices of the defendants," a search had not occurred. See id. at 464. This decision created a definitive rule regarding the definition of "search." When a government actor entered a private residence or office, the action qualified as a search for Fourth Amendment purposes. If no actual entry into a private home or business had occurred, then no search had taken place, and the Fourth Amendment requirements had not been implicated.

Nearly 40 years later, the Court substantially altered this definition. Through the case of Katz v. United States, the Court announced that a new era had arrived in search and seizure matters. See 389 U.S. 347. No longer would the meaning of "search" center on actually crossing the threshold of a building. Instead, Katz introduced a new test, the product of a concurring opinion by Justice John Marshall Harlan. This new examination focused on whether the individual had a "reasonable expectation of privacy" in the thing or location being investigated by the government. See id. at 360-61 (Harlan, J., concurring). To determine this, the Katz test required an analysis of two points: first, whether the individual had a subjective expectation of privacy in the thing being investigated by the government, and secondly, whether society as a whole would objectively recognize a reasonable expectation of privacy in whatever the government agents are looking at. See id.

Implementation of this new test transferred the focus of Fourth Amendment issues from whether government actors had physically intruded upon private property to whether the government had encroached upon an interest typically recognized as private. As a result, federal law enforcement agents could now be required to have probable cause and a warrant for an investigation which did not involve actual entry of a home or business -- a consequence that was clearly intended by the Court. "The trespass doctrine . . . can no longer be regarded as controlling," Justice Potter Stewart wrote in the majority opinion of Katz. "[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection . . . But what he seeks to preserve as private even in an area accessible to the public, may be constitutionally protected." Id. at 351-52.

The Katz test is the controlling doctrine of Fourth Amendment cases today -- at least on paper. However, Supreme Court decisions subsequent to Katz have succeeded in using the test to protect neither people nor places in a growing variety of situations. The next part of this article looks at some of these situations now deemed not to be searches by the Supreme Court, and studies the general rule that the Court seems to have formed from these decisions, a rule that seems to be far removed from what the Katz majority intended to create.

Tales of Katz: Key Cases Applying The Katz Test During The Last Four Decades And The Fourth Amendment Principles Reached By These Decisions

The warning shots came in 1971. Just five years after the Katz decision left critics fretting about a more expansive definition of "searches", the Supreme Court found a convenient way to wriggle out of this corner. And the Court didn't need to rely on any clever legal loopholes to do so. Instead, they used only the ammunition that they had been given: the test that Justice Harlan had established for the Court in Katz itself.

The case was United States v. White. See 401 U.S. 745 (1971). The issue centered on a drug conviction based largely on evidence obtained from a conversation between the defendant and a government informant wearing a concealed radio transmitter. See id. at 746-47. The defendant did not give any consent for the conversation to be recorded. See id. Nor had the government obtained a warrant allowing them to perform this conversation under surveillance for the purposes of obtaining incriminating evidence of the narcotics offense. See id. Therefore, relying on the Katz definition of a "search", the defendant argued that the recording of this conversation should be excluded from the evidence in the case as an unreasonable search in violation of the Fourth Amendment. See id.

Yet the Supreme Court disagreed. In a four-vote plurality, the Court held that the informant did not need to obtain a warrant before recording the conversation. Id. at 753. Recording the conversation, the Court ruled, was not even a search. See White, 401 U.S. at 751. The Court, in the words of Justice Byron White, did not believe that a person had a reasonable expectation of privacy in a conversation with another individual. See id. at 751-52. Even if the person thought that the conversation would be private, White wrote, any reasonable individual would know that the other person could easily leave the conversation and tell the police all of the information that had been exchanged in this seemingly private talk. See id. Thus, personal conversations -- even conversations that were agreed by the participants to be completely private -- failed the Katz test. See id. No matter how private the conversation outwardly appeared to be, society (according to the Court) recognized that there was no reasonable expectation of privacy in the thoughts and information discussed with any other person. See id. Therefore, government agents could record these conversations or otherwise use information from these conversations against a criminal defendant not only with a warrant, but without probable cause, and even without any suspicion whatsoever that the individual had committed any wrongful criminal act.

The idea that no reasonable expectation of privacy existed in personal conversations opened the door to a small deluge of similar rulings. For example, in United States v. Knotts, the Court held that law enforcement personnel could place a radio transmitter that would track an individual's every movement inside an item which this individual was certain to purchase --without any warrant based on probable cause justifying this action. See 460 U.S. 276, 285. Again, the Court used the Katz test to demonstrate that this action was not even a search. See id. at 284-85. Since the radio transmitter was primarily used to track the defendant's movements through the public streets, and individuals do not have a reasonable expectation of privacy in their travels along public thoroughfares, the "reasonable expectation of privacy" requirement of the Katz test could not be met. Id. at 285. Thus, evidence obtained by this hidden device did not violate the Fourth Amendment, as no "search" had taken place. See id.

Around this same time period, the Court also applied similar logic to an individual's own yard. In Oliver v. United States, two police officers climbed over a gate -- which was clearly marked with a "No Trespassing" sign -- onto the defendant's private property. See 466 U.S. 170, 173. Then they walked down a footpath for nearly a mile, remaining on the defendant's property the entire time, before discovering a marijuana crop growing on defendant's land. See id. The Supreme Court held that this activity was not a search. See id. at 179. Once again, the Court based its majority opinion on Katz, reviving a doctrine from a 1924 decision to determine that individuals lack a reasonable expectation of privacy in their own real estate, as long as the lands are beyond the "curtilage of the home." See id. at 180. Any activity that was conducted in an "open field" -- a piece of private property that was not located in the area immediately surrounding the home -- was not something to which the owner enjoyed a reasonable expectation of privacy. See id. This was true even if that owner had declared the lands to be private through fences, signs, and other traditional means of keeping intruders off of personal holdings. See id. Determining that lands beyond the immediate area of the home "usually are accessible to the public", the Court ruled that these pieces of private property are not recognized by society as private. White, 466 U.S. at 178-79. Thus, federal agents could enter any "open fields" without any warrant, any probable cause, or even any suspicion that evidence of criminal wrongdoing could be found there.

For anyone worried about warrantless federal government intrusions onto private property, it got worse. In 1988, the Court held that individuals lack a reasonable expectation of privacy in their own garbage, even if that garbage was concealed in opaque bags that were tied shut so that nobody could see into them. See California v. Greenwood, 486 U.S. 35, 44 (1988). Since the trash collector, a stranger, would ultimately take these bags of garbage and empty their contents into the landfill, the Court determined that people reasonably understood that anyone, including government agents, could open their garbage bags and rummage through them at any time. See id. at 41 (emphasis added). In fact, the Court noted that others frequently opened garbage bags and sorted through their contents, including "children, scavengers, snoops", and even wild animals. See id. Therefore, the Court reasoned, garbage clearly failed the Katz test as an entity to which society recognized a reasonable expectation of privacy. Id. at 44.

Activities by citizens in their own yards also fell by the wayside. In Florida v. Riley, the Court reached the same conclusion for government surveillance by means of a helicopter hovering over the defendant's yard, idling low enough for the law enforcement agents to identify marijuana growing inside the defendant's greenhouse. See 488 U.S. 445, 452 (1989). The Court utilized an expected rationale: Airspace is public, and helicopters fly over private property all the time. Therefore, an individual has no reasonable expectation of privacy in any activities that can be seen from a helicopter, even if that helicopter is chartered for law enforcement purposes and is flying low over the property for the purpose of looking for incriminating evidence. See id. at 452. As a result, air surveillance of private property was added to the list of activities which law enforcement can perform without a warrant, without probable cause, and without any suspicion that the activity will lead to a specific finding of criminality.

Even actions which seem to fit the most rudimentary definition of "searches" have been excluded from Fourth Amendment protection by the Court. In 2005, the Court ruled that allowing a drug-detection dog to sniff a person's car and belongings for drugs was not a search. See Illinois v. Caballes, 543 U.S. 405, 409 (2005). The Court held that the canine sniff was an extremely limited intrusion into individual privacy, as it was meant to search for only one thing: the presence of illegal drugs. See id. at 409 (citing United States v. Place, 462 U.S. 696, 707 (1983)). Since no legal private information was revealed by a dog sniff, the action did not violate a reasonable expectation of privacy. See id. Thus, the canine sniffs did not pass the Katz test, meaning that federal law enforcement personnel could utilize a dog sniff of a person's vehicle and belongings at any time without a warrant, without probable cause, and without any suspicion at all that the sniff could produce evidence of criminal behavior.

Taken together, these cases -- along with several others not mentioned here -- demonstrate the Court's profound reluctance to stop law enforcement from making warrantless investigations in recent decades. It also shows the primary weakness of the Katz test, as the logic of this test is malleable enough that anything could be deemed inside or outside the scope of "reasonable expectation of privacy" at the Court's whim. In the cases describe above, the majority opinions offer precious little evidence to verify that it really is "common knowledge" that people expect their garbage to be investigated by others, or that individuals truly expect their "open fields" lands to be fully accessible to the public, or any of the other broad claims made by the Court in these cases. A mere assertion, with little or no proof to substantiate it, can apparently be enough to convince a majority of justices that no societal expectation of privacy exists in a given situation.

Lastly, these cases illustrate one consistent rule in the way the Court has interpreted the Katz test. As long as any other person -- or, in the case of the decision about garbage, any animal -- can reasonably access to the item or area being searched, then the Court will likely hold that government agents automatically has this same free access to investigate this thing or location. State courts have roundly criticized this logic in a variety of cases. See, e.g., People v. Weaver, 12 N.Y.3d 433 (N.Y. 2009); State v. Pellicci, 580 A.2d 701 (N.H. 1990); State v. Campbell, 742 P.2d 683 (Ore. 1987). Yet under federal jurisprudence today, this remains the way that the Fourth Amendment is interpreted by the highest court in the land.

So when the Court accepted the case of United States v. Jones, a matter which focused on whether use of a GPS tracking device without a warrant was a "search" for Fourth Amendment purposes, the decision appeared to be a foregone conclusion. See 565 U.S. __ (2012). Many Supreme Court scholars believed that the Court would find some way to justify use of this device under the Katz test, leading to the conclusion that the law enforcement agents had not performed a search. Yet this popular prediction did not come to fruition. Instead, as the next section of this article will describe, the Supreme Court came out with perhaps its most surprising determination to date in this area of the law.

Along Came Jones: An Apparent Victory For Individual Protections Against Warrantless Searches, And A Potential Loss For The Future In This Same Area Of Law

The Supreme Court's decision in United States v. Jones produced two immediate surprises. The first shock came in the vote total: 9-0, a unanimous decision from a Court that is widely recognized as being frequently divided along partisan lines. And the second -- and more important -- surprise emerged from the decision itself. The Court had unanimously agreed that attaching a GPS device to someone's car and monitoring their movements for four weeks was a search. See Jones, 565 U.S. _ (slip op. at 12) (emphasis added).

Immediately, the case was heralded as a resounding triumph for individual protections under the Fourth Amendment. See, e.g., Diana Lithwick, Alito v. Scalia, SLATE, Jan. 23, 2012, http://www.slate.com/articles/news_and_politics/jurisprudence/2012/01/u_s_v_jones_supreme_court_justices_alito_and_scalia_brawl_over_technology_and_privacy_.html. Without a doubt, this assessment is mostly correct. For the first time in many years, the Court had decided a major Fourth Amendment question by determining that society did recognize a reasonable expectation of privacy to something other than the interior of a person's home. Even more importantly, this recognition came without a single dissenting vote. The Katz test, seemingly so close to annihilation by the Court, now appeared to have life again.

Then lawyers and legal scholars began to scrutinize the Court's decision. And the deeper they looked into Jones, the bleaker the picture began to look. See, e.g., Lithwick, Alito v. Scalia; Barry Friedman, Privacy, Technology, and Law, N.Y. TIMES, Jan. 28, 2012; Jeremy Byellin, What Does U.S. v. Jones Mean for Future Electronic Surveillance Cases, WESTLAW INSIDER, Jan. 24, 2012, http://westlawinsider.com/cyberlaw/what-does-u-s-v-jones-mean-for-future-electronic-surveillance-cases/. Now, four months after this decision was rendered by the Court, the consensus of the American legal community seems to recognize this holding as a wolf in sheep's clothing, a victory for individual Fourth Amendment safeguards that teeters dangerously close to becoming a landscape-changing setback.

The first unpleasant truth is that this unanimous decision is actually not as unanimous as the vote total indicates. The Court issued three separate opinions in this case: a majority opinion written by Justice Antonin Scalia, a concurring opinion by Justice Sandra Sotomayor, and a second concurring opinion by Justice Samuel Alito. And while each opinion reaches the same ultimate conclusion, the three justices took three dramatically different routes to reach this outcome. An examination of these varying points of view reveals that the Court may be more deeply divided than ever regarding the proper way to decide Fourth Amendment cases.

The most startling blow came from Justice Scalia. "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information," Justice Scalia wrote. "We have no doubt that such a physical intrusion would have been considered a search within the meaning of the Fourth Amendment when it was adopted." Jones, 565 U.S. __ (slip op. at 4). To Scalia, this was enough -- by itself -- to determine that a search had occurred. See id. He went on from there to analyze the entire case without using the Katz test at all. Thus, from Justice Scalia's opinion, we can gleam the following rule: a search occurs whenever the government commits a physical trespass on private property for the purpose of obtaining information. See id. (slip op. at 5). The Katz test, therefore, is to be used sparingly, if at all. See id. (slip op. at 5, 7).

Perhaps the most revealing aspect of Justice Scalia's opinion came in his discussion of United States v. Knotts, the case where the individual's movements had been tracked by a radio transmitter installed in an item which the defendant was certain to purchase. See id. (slip op. at 8-9). The Court was correct in determining that no search had occurred here, Justice Scalia wrote, because the device was implanted in the item "before it came into Knotts' possession, with the consent of the then-owner." Id. (slip op. at 8). Since the federal government did not commit a physical trespass upon the item after it was in the defendant's ownership, there was no search, even though the government planted the device without a warrant for the sole purpose of obtaining incriminating information about the defendant. See id. (slip op. at 8-9). The fact that the government agents were invading the defendant's privacy by tracking his movements through the hidden device was not of any bearing, according to Justice Scalia. The defendant "accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper's presence, even though it was used to monitor (his) location." Id.(slip op. at 9).

Therefore, the key difference between Knotts and Jones, according to Justice Scalia's rationale, was that in Knotts, the government had not planted the device on constitutionally protected property without the owner's consent, while in Jones, the government had no consent to hide the GPS on the defendant's car. To Justice Scalia, the rule for determining whether a search has occurred is based not on personal privacy interests, but rather is grounded primarily on whether the government has committed a physical trespass on someone else's property.

This startling position taken by Justice Scalia and three other members of the Court did not go unnoticed by their brethren. In a concurring opinion joined by three other justices, Justice Alito takes every available opportunity to criticize Justice Scalia's approach to this case. "Ironically, the Court has chosen to decide this case based on 18th-century tort law," Justice Alito wrote. "By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search." Jones, 565 U.S. __ (Alito, J., concurring, at 1).

The problem, Justice Alito wrote, is that Justice Scalia's opinion focused on a subsidiary issue -- the fact that a physical trespass occurred -- rather than taking note of the bigger problem taking place. Id. (Alito, J., concurring, at 7). The real problem at the heart of the law enforcement conduct in Jones, according to Justice Alito, was exactly what Justice Harlan described in Katz: an individual's reasonable expectation of privacy against warrantless government intrusion had been violated. See id. While noting that the Katz test is far from perfect, Justice Alito's concurrence holds that it is a far more realistic approach to what the Fourth Amendment is trying to protect. See id. (Alito, J., concurring, at 10). The fact that the government had committed a physical trespass in one case and did not commit any trespass in another case should not lead to different results if the defendant's reasonable expectation of privacy had been breached in both situations.

However, Justice Alito also made certain to state that not every instance of GPS surveillance constituted an invasion of a reasonable expectation of privacy under Katz. See id. (Alito, J., concurring, at 10). Instead, he noted that advances in technology have produced plenty of widely used devices which make monitoring of another person's movements surprisingly commonplace. See Jones, 565 U.S.__ (Alito, J., concurring, at 11). As a result, some instances of tracking a person's movements through use of a GPS or other commonly used tool might not be considered an intrusion upon a reasonable expectation of privacy. See id. The key in Jones, according to Justice Alito, was not only that the law enforcement agents had secretly planted the device on the defendant's car without a warrant, but that they had used the device to gather data on his movements for a lengthy period of time -- more than four weeks in all. See id. (Alito, J., concurring, at 13). This prolonged intrusion, Justice Alito wrote, clearly violated a reasonably expectation of privacy from government surveillance. See id.

It was in this last regard that Justice Sotomayor, writing a solo concurring opinion, differed from Justice Alito. "In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention," Justice Sotomayor wrote. Id. (Sotomayor, J., concurring, at 3). As GPS tracking can produce "a precise, comprehensive record" of a person's movements that can be stored and used by the government for "years into the future", allowing even brief periods of monitoring without a warrant could qualify as an intrusion in an individual's reasonable expectation of privacy. Id. "Awareness that the Government may be watching chills associational and expressive freedoms," Justice Sotomayor explained. "And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse." Jones, 565 U.S. __ (Sotomayor, J., concurring, at 3).

Most notably, though, Justice Sotomayor provided another strident rebuke to Justice Scalia's "physical trespass" basis for deciding the case. See id. (Sotomayor, J., concurring, at 1)."Of course, the Fourth Amendment is concerned not only with trespassory intrusions on property," she wrote. "Rather, even in absence of a trespass, 'a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Id. The message was clear: Like Justice Alito, Justice Sotomayor refused to believe that the definition of a search should be based on whether a physical trespass had taken place. See id. The Katz analysis of a reasonable expectation of privacy, to her, was still the more realistic and appropriate way of evaluating these claims. See id.

Thus, between the approval of Justice Sotomayor and the endorsement of Justice Alito and the three justices who joined his concurrence, the Katz test gained a majority of votes in the Jones case. Yet Katz had experienced its strongest challenge ever in the Jones decision. Indeed, the reasonable expectation of privacy framework now hangs in the balance, one vote away from elimination. And in this important but changeable area of law, nobody can honestly predict what the future might bring.

IV Conclusions

Since James Otis spoke to that crowded Massachusetts courtroom in February of 1761, protections against unreasonable searches and seizures have been at the forefront of America's concerns. The desire to protect citizens against overzealous or vindictive government agents appears in the Declaration of Independence, in countless debates leading up to the passage of the federal Constitution, and, most importantly, in the Fourth Amendment to that Constitution. And it has been recognized by many of America's greatest jurists as an essential safeguard to preserving a free society in this nation. "Uncontrolled search and seizure is one of the first and most effective weapons in the arsenal of every arbitrary government," Supreme Court Justice Robert Jackson wrote in 1949. He understood the weapons of arbitrary governments all too well, having served just a few years earlier as the chief United States prosecutor in the Nuremberg Trials, holding leaders of Nazi Germany accountable for their war crimes. "Among deprivations of rights, none is so effective in cowing a population, crushing the spirit of the individual and putting terror in every heart." Brinegar v. United States, 338 U.S. 160, 180 (1949).

As this article shows, however, American judicial leaders frequently disagree as to how far this right extends, and how its deprivation should be prevented. In recent decades, it has been profoundly limited through Supreme Court decisions adopting an extremely narrow view of society's reasonable expectation of privacy, thereby allowing federal law enforcement agents an unprecedented number of intrusions into private lives and property without requiring a warrant, without requiring probable cause, and without even requiring suspicion that criminal activity will be discovered.

On one hand, this can seem like a very good thing, as it permits law enforcement to conduct more thorough investigations that can result in solving crimes and removing criminals from the streets -- results which certainly are desirable. On the other hand, though, this permissive federal atmosphere for warrantless, probable cause-less investigations by law enforcement is extremely dangerous. With each new Court decision classifying a form of government intrusion as "not a search", we move closer to that "weapon of arbitrary government" against which Justice Jackson eloquently warned, closer to that "instrument of arbitrary power" that James Otis's clients had wrongfully experienced.

Now, with the Court's decision in Jones, the nation finds itself dangerously close to losing one of the most fundamental principles in federal Fourth Amendment jurisprudence. Justice Scalia and three other justices agree that the primary test for determining whether a search has occurred is not reasonable expectation of privacy at all. Instead, they would prefer to base their decisions on a bright-line rule of whether the government had committed a physical trespass. This is the very rule that was created in the Olmstead decision of 1928, and the very rule that was struck down by the Katz Court that recognized that the Fourth Amendment "protects people, not places." And it was a rule that was eliminated from Fourth Amendment decisions for a very good reason.

Consider a world in which every Fourth Amendment decision was based on the principle that Justice Scalia and the justices who joined him consider paramount: whether the government committed a physical trespass. This would provide a clear field for law enforcement personnel to engage in a tremendous variety of intrusive tactics. Spying on somebody in their home using a high-powered telescope would evidently not be considered a search, as it would not involve a physical trespass inside the person's home. Eavesdropping on apparently private conversations in a private area using an enhanced listening device would likewise be a "non-search" for Fourth Amendment purposes, as no physical trespass had occurred. In fact, had the police simply followed the defendant in Jones for four weeks instead of tracking him through placing the GPS device on his car, Justice Scalia likely would have been forced to declare that this practice was not a search, as the police had not physically intruded upon the defendant's property. And all of these extremely invasive practices would be allowable, under Justice Scalia's physical trespass rationale, without a warrant, without probable cause, and without any sort of suspicion that the investigation would yield evidence of a specific criminal wrongdoing.

Such a world would thus allow law enforcement officers to engage in any number of "fishing expeditions", in which the privacy of citizens would be intruded upon by government agents acting on a bare hunch that these citizens might be doing something wrong. Even worse, it would give these government actors the most dangerous of all powers: the ability to breach somebody's private life merely to torment them, harassing them and subjecting their personal affairs to scrutiny without any belief whatsoever that they might have done something wrong. This is not the type of conduct permitted by a free society that values the rights of its citizens. Instead, it sounds like James Otis's worst nightmare.

It is true, as both Justice Scalia and Justice Alito point out, that the Katz test is not beyond reproach. The logic employed by the analysis in Katz is indeed open to manipulation, as the Court only has to assert some reason -- with no proof to back it up -- showing why society does not reasonably expect privacy in a particular item or location. Indeed, the Court has proven the malleability of Katz in many of cases cited in this article. In addition, the extent of the Katz protections will change as evolving technology makes devices allowing for privacy intrusions, such as enhanced seeing and listening appliances, far more commonplace. Potentially, there is reason to believe that the Katz test deserves to be revised.

Yet even if Katz should be altered, the "physical trespass" analysis put forth by Justice Scalia is certainly not the correct solution. Adopting such a test would set Fourth Amendment rights back to the days when Olmstead governed and places, not people, were considered the key to Fourth Amendment protections. Such days were supposed to end with the Court's decision in Katz. Yet after seeing the opinion that gained the approval of four justices in Jones, those days are uncomfortably close to coming back.

It is important that this earlier era does not return. It is important that we recognize that the meaning of the Fourth Amendment goes beyond physical trespass, and is truly meant to protect against the evil that James Otis experienced back in 1761: invasions by government agents in areas reasonably expected by citizens to be private. Failing to see that the Fourth Amendment really does protect "people, not places" would, in the words of James Otis, "totally annihilate this privilege" of privacy expectations by American citizens. Considering that the fight for these protections has lasted for more than 250 years, it would be a shame to see it come to such a detrimental end.

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This page contains a single entry from the blog posted on May 16, 2012 3:50 PM.

The previous post in this blog was "Sitting Judges As Arbitrators: The Delaware Experiment" by Brian Farkas.

The next post in this blog is "Proposed Amendments Of The DSM-5: The Exploitation Of Pharmaceutical Consumerism, Private Mental Health Professionals, And The State vs. The Individual Patient" by Gary Pustel .

Many more can be found on the main index page or by looking through the archives.