SEARCH WARS: A New Hope for Definitional Clarity

EPISODE I OF III

As movie trilogies go, the original "Star Wars" trilogy looms largest in popular culture. It also provides a (mildly) entertaining framework for this trilogy of articles discussing the present, past, and possible future of the Fourth Amendment.

As there was in the first "Star Wars" movie, there is presently a "disturbance in the Fourth" (Amendment, that is).

That disturbance first manifested itself in 1967.

By its plain terms, the Fourth Amendment protects against "unreasonable searches and seizures." Prior to 1967, the U.S. Supreme Court defined the amendment's scope by reference to common-law property concepts. Whether the police effected a "search" depending entirely on whether they physically trespassed on a person's property. If they did, the Fourth Amendment applied, Silverman v. United States, 365 U.S. 505 (1961); if they did not, the Fourth Amendment did not apply no matter what information the cops obtained, Olmstead v. United States, 277 U.S. 438 (1928).

That all changed with Katz v. United States, 389 U.S. 347 (1967). There, the police attached a listening device to the outside of a public telephone booth to catch Katz placing illegal bets. Had the Supreme Court followed its earlier precedent, the wiretap of the booth would not have implicated the Fourth Amendment because the device they used did not physically intrude into the booth. But the court elected instead to jettison the property-based conception of the Fourth Amendment in favor of one grounded in privacy. Justice John Harlan, in a concurrence, set forth what would become the touchstone inquiry under this privacy-based notion of the Fourth Amendment: Does the criminal defendant have an actual expectation of privacy in the place searched that society is prepared to recognize as reasonable? Id. at 361.

For several decades, the Supreme Court proceeded as if privacy was the sole rationale underlying the Fourth Amendment. Although the Katz majority observed that "what [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected," id. at 351 (emphasis added), the court subsequently equated privacy with secrecy.

So defined, a person's expectation of privacy in information - no matter how reasonable that expectation might be - evaporated once he or she "voluntarily" "revealed [the information] to a third party, ... even if the information [was] revealed on the assumption that it will be used only for a limited purpose," United States v. Miller, 425 U.S. 435, 442-43 (1976), and even if the person had no practical alternative to revealing that information. Applying this definition, the Supreme Court held that negotiable instruments, the numbers dialed on a telephone, and trash left on the curb were unprotected by the Fourth Amendment because they were "voluntarily" revealed to the bank, the phone company, or the garbage collector. Miller (negotiable instruments); Smith v. Maryland, 442 U.S. 735 (1979) (numbers dialed); California v. Greenwood, 486 U.S. 35 (1988) (garbage). The fact that there were no viable alternatives to banks, telephones, or garbage collection did not factor into the court's analysis.

Where did the Supreme Court get its secrecy-based definition of privacy? Miller, Smith and Greenwood all cited the line of cases dealing with the "misplaced trust" doctrine. That doctrine provides that "one contemplating illegal activities must realize and risk that his companions may be reporting to the police." United States v. White, 401 U.S. 745, 752 (1971); Lopez v. United States, 373 U.S. 427 (1963); Hoffa v. United States, 385 U.S. 293 (1966).

About five years ago, the disturbance in 1967 that gave rise to a privacy-based "empire" under the Fourth Amendment spawned a further rebellion - this time against itself.

The rebellion first manifested itself in United States v. Jones, 565 U.S. 400 (2012). Jones presented the question whether the use of a GPS device to track a person's movements on public roadways for 28 days constituted a "search." Knotts v. United States, 460 U.S. 276 (1983), had held that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another" because, in so traveling, "he voluntarily convey[s] to anyone who wanted to look the fact that the was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exit[s] public roads onto private property." Id. at 281-82.

But no member of the Supreme Court in Jones was content to follow Knotts. The majority opinion penned by Justice Antonin Scalia resurrected the Fourth Amendment's property rationale and concluded that the Fourth Amendment covered use of the GPS device in Jones' case because police physically trespassed onto the chassis of Jones' wife's Jeep when affixing the device. A different majority, led by Justice Samuel Alito's plurality opinion, stuck with the Fourth Amendment's privacy rationale, but ruled that "longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy" because such "prolonged ... monitoring" "catalogue[s] every single movement." Id. at 430-31. Justice Sonia Sotomayor, in a separate concurrence, expressed agreement with Justice Alito and voiced her concern that GPS monitoring "make[s] available ... a substantial quantity of intimate information" because it "generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." Id. at 415, 416.

The nearly unanimous majority opinion in Riley v. California, 134 S. Ct. 2473 (2014), traveled farther down the metaphorical road charted by Alito and Sotomayor's "second majority" in Jones. The issue in Riley was whether police could search digital devices found on an arrestee as part of a search incident to arrest (that is, without a warrant and without any further showing of probable cause beyond that needed for the arrest itself). Riley held that the police could not. Most intriguing was the Supreme Court's reasoning. After concluding that the usual governmental interests that justify searches incident to arrest (namely, that objects in an arrestee's possession might pose a danger to the arresting officers or be destroyed) were less pressing as to data accessible through a cellphone, the court examined the arrestee's countervailing privacy interests in the data stored or, or accessible through, his cellphone. In this regard, the court noted that cellphones effectively make available "a cache of sensitive personal information" that comprises "the sum of an individual's private life." Id. at 2489-90.

Because the applicability of the Fourth Amendment in Jones' "second majority" and in Riley turns on the information police obtain, the new, rebellious approach focuses less on what police do and more on what they learn.

It is difficult, if not impossible, to reconcile these opinions with the earlier cases espousing a secrecy-based definition of privacy. Knotts held that a person had no reasonable expectation of privacy in where she traveled in public; five justices in Jones held she did, at least where longer-term GPS monitoring is involved. Kyllo v. United States, 533 U.S. 27 (2001), suggested that the Fourth Amendment's protections do not turn on the "quality and quantity of information obtained," id. at 37; Riley refused to apply the search incident to arrest doctrine to cellphones due to the "qualit[y] and quantit[y]" of information they store, Riley at 2489, 2490. Indeed, Justice Sotomayor seemingly acknowledged this irreconcilability when she suggested, in Jones, that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Jones at 417.

But Justice Sotomayor's suggestion serves up the question: What definition of the privacy should the court use for the Fourth Amendment?

The Supreme Court has already hinted at one possible definition, and its lineage traces back nearly 150 years. What is it? That is for tomorrow's article. (Cliffhangers do sell more tickets, after all.)