Part One in this series of columns appeared on Justia’s Verdict on February 8, and can be found here.—Ed.
Scalia vs. Alito
According to Justice Scalia, writing for a majority of the Court in Jones, the police performed a Fourth Amendment “search” of Antoine Jones because they attached a GPS tracking device to Jones’s property without his consent, thereby committing a trespass on his “effects” (one of the protected items listed in the amendment). Combining that initial trespass with the subsequent information-gathering that was enabled by the trespass, the Court found that the sort of “search” that would have offended the founding generation had occurred.
Justice Scalia explicitly distinguished Knotts on the ground that in that case, police had received permission from the owner of the property to have their tracking device (the beeper) placed in it. It was only afterward that the suspect came into possession of the property—which, as I noted in Part One of this series of columns, already contained the beeper—and he therefore had no cause to complain of trespass.
In other words, rather than emphasize the monumental difference between the intrusiveness of the beeper in Knotts, on one hand, and of a GPS, on the other, Justice Scalia chose instead to distinguish Jones on the basis of when the police had installed the respective devices (after the property had come into the possession of the target, in Jones, and before the property had come into the possession of the target, in Knotts).
Because of the physical trespass coupled with information gathering, Justice Scalia explained, the installment of the GPS device resembled the sort of tactic that police might have used in the Eighteenth Century and that would have qualified as a search at that time. He reasoned as follows: Just as a constable might surreptitiously, and without consent, climb aboard a stagecoach and keep track of the stagecoach’s travels from one place to another, so, too, the GPS device can, surreptitiously and without consent, be attached to the underside of an automobile and enable the police to keep track of the automobile’s travels.
In his concurring opinion, Justice Alito mocks Justice Scalia’s originalist reasoning, saying that for an Eighteenth Century constable to have done the sort of surreptitious surveillance possible with GPS-monitoring “would have required either a gigantic coach, a very tiny constable, or both.” Dismissing the enterprise of identifying a precise analogue to the GPS device from Eighteenth Century experience, Justice Alito states that “the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation).”
What made the police activity in Jones a search, according to Justice Alito, was not the fact that such monitoring began with a trivial trespass onto the underbelly of Jones’s vehicle, but instead the fact that it invaded Jones’s reasonable expectation of privacy against having all of his trips monitored for twenty-eight days.
Why Justice Alito’s Reasoning Is Compelling
Justice Alito makes a compelling case. Jones most likely could not have cared less about someone’s “trespassing” on his “effects” by touching the vehicle in question without permission, in the absence of the information-gathering that it enabled. And conversely, Jones would have likely found no comfort in learning that police had attached their device to his vehicle before it became his vehicle.
For an illustration, consider the following example: You decide you want to rent an apartment from Mr. Landlord. You sign a lease on Monday, and move in on Wednesday. Unbeknownst to you, on Sunday, the day before you signed the lease, Mr. Landlord had placed tiny video cameras throughout the apartment so that he could watch all of your activities within the apartment.
Now imagine finding out about the cameras, after a month of living in the apartment. Would the fact that Mr. Landlord had installed them on Sunday, before you had a rental interest in the apartment, provide any comfort at all? Would you say to yourself “Well, I’m sure glad that Mr. Landlord installed those cameras on Sunday, before I signed the lease, rather than on Tuesday, the day after I signed the lease (the day before I moved in)!”?
Would Justice Scalia truly reject your Fourth Amendment claim if it turned out that the police had asked Mr. Landlord to install the video cameras on Sunday, thus enabling the government to watch you at home for a month without any physical trespass? Certainly not.
I have at least two reasons for being confident that Justice Scalia would readily find such police conduct unconstitutional. First, he wrote the majority opinion in Kyllo v. United States.
In Kyllo, federal authorities—without a warrant—had used a thermal detection device (TDD) to scan Danny Lee Kyllo’s home for heat patterns. As a result, they learned that the amount of heat emanating from Kyllo’s home was consistent with indoor marijuana cultivation. Agents then obtained a search warrant on the basis of the information gathered by the TDD and searched Kyllo’s home, finding marijuana, just as they had anticipated. After his conditional guilty plea, Kyllo challenged the use of the TDD as an unlawful Fourth Amendment search, and he won in the U.S. Supreme Court.
Writing for a majority of the Court, Justice Scalia reasoned that even though the use of the TDD in Kyllo did not involve any physical trespass, it nonetheless permitted the police to gather information that, in the absence of the TDD, would have been available only with a physical entry into the home. Though the TDD did not in fact uncover anything especially personal or intimate about Kyllo, Justice Scalia remarked that “[i]n the home, our cases show, all details are intimate details, because the entire area is held safe from prying government eyes.”
In Kyllo, Justice Stevens dissented, distinguishing between the sort of device that might involve “through-the-wall” surveillance (such as an X-ray machine) and therefore constitute a form of physical trespass, on one hand; and the use of the TDD, which involved only the gathering of discarded heat waves emerging from the suspect’s home, which yielded “off-the-wall” observations, on the other. Justice Scalia mocked as unhelpful formalism Justice Stevens’s “through the wall” versus ”off the wall” distinction, despite the fact that it tracks the very sort of trespass emphasis that Justice Scalia embraces in Jones.
What matters, Justice Scalia insisted in Kyllo, is the invasion of Kyllo’s privacy at home, regardless of whether the technology did or did not involve penetration of the wall. If thermal detection in the absence of physical trespass invades a reasonable expectation of privacy, as Justice Scalia found that it does, then there is no question but that video surveillance of the inside of a home (of the sort described in our earlier hypothetical example) would as well.
From reading Kyllo, moreover, and Justice Scalia’s evident disdain for the dissent’s “off-the-wall”/”through-the-wall” distinction, one gets the impression that even if the TDD had utilized X-rays, instead of passively collecting heat to gather information about the relative distribution of heat in the house, Justice Scalia would not have altered his analysis to state, as he does in Jones, that physical trespass obviates any need to consider whether the police invaded Kyllo’s reasonable expectations of privacy.
Justice Scalia, in Jones, Sees Physical Trespass as a Floor, Not a Ceiling, for Fourth Amendment Rights
The second reason for my confidence about Justice Scalia’s disposition of the video-surveillance-of-your-apartment example, above, is that in his opinion in Jones itself, Justice Scalia says that physical trespass provides a floor, rather than a ceiling, on Fourth Amendment protection.
Quoting with approval from an opinion by Justice Brennan, Justice Scalia explains that “Katz did not erode the principle ‘that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.’” Accordingly, concludes Justice Scalia, “Katz did not narrow the Fourth Amendment’s scope.”
Stating further that “the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test,” Justice Scalia accuses Justice Alito of trying to contract the scope of Fourth Amendment rights: “What we [the majority] apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed.” (Second emphasis added).
For Justice Scalia, then, determining whether a Fourth Amendment search has occurred must (at least sometimes) begin with the question “Was there a trespass on a person, house, paper, or effect?,” but the analysis does not end there, if the answer to this question is no. Instead, we must then ask the next question, “Did police otherwise invade any reasonable expectation of privacy?”
Reason for Optimism About the Future of Fourth Amendment Rights
My reaction to Justice Scalia’s accusation against Justice Alito is to feel optimistic about the future of the Fourth Amendment. Both the majority and Justice Alito’s concurrence endorse the “reasonable expectation of privacy” test. The concurrence believes that this test is central to its ruling in favor of Antoine Jones, while the majority views the test as unnecessary in the Jones case, given the physical trespass that occurred. The fact that Justices Scalia and Alito are battling over who best protects the privacy interests of the defendant should be quite exciting to fans of constitutional privacy.
Perhaps most exciting of all is the explicit acknowledgment by at least five Justices on the current Court that protecting Fourth Amendment rights in the electronic age demands more than it did in the Eighteenth Century. Having joined the majority as a crucial fifth vote, Justice Sotomayor writes a separate concurrence in Jones which expressly questions the wisdom of existing restrictions on Fourth Amendment rights. She says that perhaps it no longer makes sense to treat a person’s sharing of private matters with one party as also constituting a forfeiture of Fourth Amendment privacy against the government. It is worth quoting her opinion at length on this point:
[I]t may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. [citing Smith and Miller] This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers…. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. (emphases added).
In 2002, I published an article in the Stanford Law Review entitled “What Is A Search?: Two Conceptual Flaws in Fourth Amendment Doctrine and Some Hints of a Remedy.” One of the two flaws I identified in Fourth Amendment doctrine was the Court’s willingness to treat a partial exposure of private matters as a complete forfeiture of one’s freedom from government searches. Justice Sotomayor’s statements give me hope that the Court may be ready, finally, to move beyond this impoverished vision of the scope of the privacy protected by the Fourth Amendment.