SEARCH WARS: The Fifth Amendment Strikes Back

EPISODE II OF III

Monday's article left off with the question: How might the U.S. Supreme Court define what information is private - and hence protected by the Fourth Amendment - if the court were to abandon, in whole or in part, its longstanding definition that turns chiefly on whether the information has been kept secret?

Here is the short answer: Privacy could be defined to protect our personhood - that is, the intimate details of our lives that, in the aggregate, define us and reveal who we are as individuals. Collection of these details is accordingly a "search" - and falls within the ambit of the Fourth Amendment - if it enables police to reconstruct our individual personhood.

So where does a definition focusing on personhood come from?

Three places, actually.

First, the Fourth Amendment provides a textual basis for a personhood-based definition of privacy.

The amendment guarantees "the right of the people to be secure in their persons, houses, papers and effects." The last three enumerated items are part and parcel of one's personhood. In Kyllo v. United States, 533 U.S. 27 (2001), the Supreme Court remarked that "[i]n the home ... all details are intimate details." Id. at 37. And the court has extended the protection accorded to homes under the Fourth Amendment to the curtilage surrounding the home. More to the point, it did so precisely because the curtilage is "the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life.'" Oliver v. United States, 466 U.S. 170, 180 (1984). The statements we write down in our papers, and the effects we accumulate in our lives, also reveal much about who we are as individuals.

Second, and perhaps most curiously, a personhood-based definition comes from the history of the Fourth Amendment and its brief marriage to the Fifth Amendment's privilege against self-incrimination. Admittedly, backstories can be boring, but they can also be illuminating. In "Star Wars," we all had to suffer through Jar Jar Binks to learn about Anakin Skywalker's descent to the Dark Side (and to learn that it might have been averted by a 12-week anger management course). Blessedly, however, the backstory of the Fourth Amendment's dalliance with the Fifth is Jar Jar-free.

The Fifth Amendment provides, in pertinent part, that "[n]o person ... shall be compelled in any criminal case to be a witness against himself." Courts have read this language to create a privilege against the compelled disclosure of information that is both "incriminating" and "testimonial." Hiibel v. Sixth Judicial District Court, 542 U.S. 177, 189 (2004).

The privilege serves many purposes. Most pertinent here is the privilege's role in effectuating "our respect for the inviobility of the human personality and of the right of each individual 'to a private enclave where he may lead a private life.'" Murphy v. Waterfront Commission of New York Harbor, 378 U.S. 52, 55 (1964). This rationale is why the privilege reaches "testimonial" evidence - that is, "communications [that] ... explicitly or implicitly ... disclose information," Doe v. United States, 487 U.S. 201, 210 (1988), but excludes "real" or "physical" evidence such a taking a blood sample, Schmberber v. California, 384 U.S. 757 (1966), taking a handwriting or voice examplar, Gilbert v. California, 388 U.S. 263 (1967); United States v. Dionisio, 410 U.S. 1, 7 (1973), or standing in line-up wearing particular clothes, United States v. Wade, 388 U.S. 218 (1967); Holt v. United States, 218 U.S. 245 (1910). Only with testimonial evidence is the accused "forc[ed] ... 'to disclose the contents of his own mind,'" Pennsylvania v. Muniz, 496 U.S. 582, 594 (1990) (quoting Curcio v. United States, 354 U.S. 118, 128 (1957)), and hence forced to make some of his private enclave - the details that together define him as a person - public.

For a time, the Supreme Court viewed the privilege against self-incrimination and the Fourth Amendment as flip sides of the same coin. The culmination of that view was Boyd v. United States, 116 U.S. 616 (1886).

Boyd involved the constitutionality of a federal statute that authorized prosecutors to petition for a court order that compelled a person to produce his business records or else the allegations made in the petition would be "taken as confessed." Id. at 620-21. The prosecutors demanded Boyd's records to show he had been violating federal customs laws in importing plate glass. The Supreme Court struck down the statute under both the Fourth Amendment and the Fifth Amendment's privilege against self-incrimination. In coming to this conclusion, the court was "unable to perceive that the seizure of a man's private books and papers to be used in evidence against him is substantially different from compelling him to be a witness against himself." Id. at 633. "In this regard," the court observed, "the Fourth and Fifth Amendments run almost into each other." Id. at 630. Thus, the "compulsory production of the private books and papers of the owner of goods sought to be forfeited ... is compelling him to be a witness against himself, within the meaning of the Fifth Amendment ... , and is the equivalent of a search and seizure - and an unreasonable search and seizure - within the meaning of the Fourth Amendment." Id. at 634-35.

The Supreme Court later put some space (pun intended) between the reach of the Fourth Amendment and the privilege against self-incrimination when it held that the lawful seizure of voluntarily created documents does not violate the privilege against self-incrimination. Andresen v. Maryland, 427 U.S. 463 (1976). But the court has not sent the rationales underlying these two provisions into different star systems. As Yoda might say, "Closely aligned, they remain." Accord, Schmerber v. California, 384 U.S. 757, 767 (1966) ("The values protected by the Fourth Amendment ... substantially overlap those the Fifth Amendment helps to protect."). Thus, personhood is part of the Fourth Amendment's past.

Third and lastly, the Supreme Court has recently dredged up this past like an X-wing Starfighter from a Dagobah swamp. Riley v. California, 134 S. Ct. 2473 (2014) is a case in point.

Riley held that police may not search a cellphone incident to arrest without obtaining a warrant. The court catalogued how cellphones store "photographs, picture messages, text messages ... a calendar, a thousand-entry phone book, and so on"; how the "browsing history ... on an Internet-enabled phone ... [can] reveal an individual's private interests or concerns"; and how "[d]ata on a cell phone can also reveal where a person has been[, making it possible to] reconstruct someone's specific movements down to the minute, not only around town but also within a particular building." Id. at 2489, 2490. The court summed up its concerns: "With all they contain and all they may reveal, [cellphones] hold for many Americans 'the privacies of life.'" Id. at 2494-95.

What case did the Riley majority cite? Boyd.

For all these reasons, a personhood-based definition of privacy that guards against the acquisition of information that, when compiled, exposes our personhood is not all that foreign to the Fourth Amendment.

Nor is it a stranger to notions of privacy. As far back as 1960, Professor Edward J. Bloustein remarked that the torts for invasion of privacy were meant to protect "inviolate personality" - that is, "the individual's independence, dignity and integrity" as revealed by the information that "defines man's essence as a unique and self-determining being." Bloustein, "Privacy as an Aspect of Human Dignity: An Answer to Dean Prosser," 39 N.Y.U. Law. Rev. 962, 971 (1960).

But is a personhood-based definition of privacy a workable alternative to a secrecy-based definition of privacy under the Fourth Amendment?

That question is for tomorrow's final installment of the trilogy.