The Fourth Amendment pendulum

For better or worse, the Fourth Amendment was all about property rights until the mid-20th century. Police could eavesdrop as long as they did not "physically intrude" upon the unsuspecting target's property. Olmstead v. United States, 277 U.S. 438, 464-66 (1928) (wiretapping off premises; was not a "search"); cf. Silverman v. United States, 365 U.S. 505, 506-10 (1961) (eavesdropping by inserting "spike mike" into walls of target's rowhouse; was a "search"). And police could only seize items in which they had a superior property interest (such as contraband, or the fruits or instrumentalities of a crime); "mere evidence" was immune from seizure because it belonged to the suspect. Gouled v. United States, 255 U.S. 298, 309 (1921).

That all changed in the 1960s and 1970s.

In Jones v. United States, 362 U.S. 257 (1960), the Supreme Court started to divorce Fourth Amendment protections from their grounding in common-law property rules. There, the court conferred standing to challenge a search upon "anyone legitimately on [the] premises" because common-law "[d]istinctions such as those between 'lessee,' 'licensee', 'invitee' and 'guest,' [were] often only of gossamer strength [and] ought not to be determinative in fashioning procedures ultimately referable to constitutional safeguards." Id. at 266-67. The court cemented that divorce in Katz v. United States, 389 U.S. 347 (1967), when it declared privacy to be the new touchstone of Fourth Amendment protection, id. at 351-53, and when Justice Marshall Harlan first articulated the two-part test now used to define whether a "search" has occurred - namely, when (1) the suspect "ha[s] exhibited an actual (subjective) expectation of privacy" and (2) that expectation is "one ... society is prepared to recognize as 'reasonable,'" id. at 361. The earlier decisions focusing on superior property interests accordingly fell by the wayside. See Warden v. Hayden, 387 U.S. 294, 300-10 (1967) (overruling Gouled). Rakas v. Illinois, 439 U.S. 128 (1978) even more fully embraced Katz's privacy rationale by rejecting Jones' "legitimately on the premises" test for standing and instead holding that Fourth Amendment standing turned solely on whether the objecting party had a reasonable expectation of privacy in the place searched. Id. at 139-43.

Now the pendulum appears to be swinging back. In United States v. Jones, 132 S. Ct. 934 (2012) (no relation to the 1960 Jones v. United States), a bare majority of the court declared that "the Katz reasonable-expectation-of-privacy test ha[d] been added to, not substituted for, the common-law trespassory test" as the trigger for Fourth Amendment protection. Id. at 952. On this basis, the court in Jones held that placing a GPS device on a car's undercarriage constituted a "search" because it effected a common-law trespass, id. at 949-50, and in Florida v. Jardines, 133 S. Ct. 1409 (2013), a different bare majority held that leading a drug-sniffing dog on a leash up to a house's front porch constituted a "search" because it exceeded the scope of the common-law implied license to enter the curtilage of a home to knock on the front door, id. at 1414-16.

The author of both majority opinions was Justice Antonin Scalia, and it is too early to tell what effect, if any, his passing will have on the pendulum's swing. But if the swing continues, this recent resurgence in the Fourth Amendment's property test will not likely lead to the jettisoning of the privacy test. However, what remains to be seen is where the court will strike an equilibrium between these two approaches to the amendment's scope.

In a vast number of instances, this question is academic because the property and privacy tests point to the same result. Thus, when a person lives in her own home, rents an apartment, stays overnight in a friend's home, or rents a hotel room, she has both a common-law property interest and a reasonable expectation of privacy in her lodgings. See Kyllo v. United States, 533 U.S. 27, 31 (2001) (home); Minnesota v. Olson, 495 U.S. 91, 96-97 (1990) (overnight guest); Stoner v. California, 376 U.S. 483, 490 (1964) (hotel room). Conversely but in the same vein, when a person is squatting in a home or possesses stolen property, he obviously has no property interest in that property. In that situation, he also has no cognizable privacy interest: "[R]egardless of whether he expects to maintain privacy in the contents of stolen property, such an expectation is not one that 'society is prepared to accept as reasonable.'" United States v. Caymen, 404 F.3d 1196, 1200 (9th Cir. 2005). On this reasoning, courts have rejected claims that police engage in a Fourth Amendment "search" when they search a home occupied by a squatter, Rakas, supra, at 143 n.12; Zimmerman v. Bishop Estate, 25 F.3d 786, 787-88 (9th Cir. 1993); search a stolen car, People v. Carter, 36 Cal. 4th 1116, 1141 (2005); search a laptop obtained by fraud, Caymen, supra, at 1200; or track a stolen cellphone using its GPS locator, People v. Barnes, 216 Cal. App. 4th 1508, 1518-19 (2013).

The need to balance and reconcile the two Fourth Amendment tests comes into play when they point to different outcomes.

The courts have decided cases where a party has no common-law property interest in the place searched, but has an expectation of privacy. These cases involved people who have set up tents or makeshift dwellings in campgrounds or on publicly owned land, People v. Hughston, 168 Cal. App. 4th 1062, 1070-71 (2008); People v. Nishi, 207 Cal. App. 4th 954, 961-63 (2012); United States v. Sandoval, 200 F.3d 659, 659-61 (9th Cir. 2000) (federal land); People v. Thomas, 38 Cal. App. 4th 1331, 1334-35 (1995) (public sidewalk); people who have stayed in hotel rooms knowingly obtained by fraud or beyond their term, People v. Satz, 61 Cal. App. 4th 322, 325-26 (1998); United States v. Bautista, 362 F.3d 584, 590-91 (9th Cir. 2004); cf. People v. Munoz, 167 Cal. App. 4th 126, 131-35 (2008) (use of single counterfeit $20 bill; not fraudulent); or people who have kept their rental cars beyond the duration of the rental contract, United States v. Henderson, 241 F.3d 638, 647 (9th Cir. 2000). By and large, the courts have held that the suspect's expectation of privacy was reasonable and that this expectation trumped the absence of any property interest, at least until such time as the true owner asserts his or her property interest. See Satz; Bautistia; but see Thomas, supra, at 1335 (simply being "subject to immediate ejection" defeated expectation of privacy).

The courts have yet to grapple with how the Fourth Amendment applies to searches of areas in which a person has a common-law property interest but no reasonable expectation of privacy. Take, for instance, a man who owns the home where he and his wife live. Further assume that the wife obtains a domestic violence restraining order barring the husband from the home on pain of committing a misdemeanor or, if not a first-time offense, a felony. See Family Code Sections 6218(b), 6321; Penal Code Sections 166(a)(4), (c)(1), (c)(3)(B), (c)(4). On these facts, the husband still owns the house but ostensibly has no legitimate expectation of privacy because the protective order renders his presence there illegal and arguably illegitimate.

If the police should search the home, which interest - property or privacy - should control? Will the courts declare one interest to be controlling, or instead fashion a mechanism for balancing both interests?

It is unclear where the pendulum will come to rest. But the need to fix the resting point will only become more important as the advance of technology makes assessing expectations of privacy all the more difficult, and if courts continue their turn to notions of property for answers.