The Difficulty of the Search Question: More Thoughts on Chatrie

I have been posting on Chatrie v. United States, the Supreme Court’s geofencing case to be argued on Monday.  In this post, I wanted to talk a bit on why the search question is particularly hard.

The Supreme Court has long struggled to explain what makes government action a “search” of an individuals’ “persons, houses, papers, and effects.”  The Fourth Amendment is generally understood to have been enacted in response to a series of disputes in the 18th Century, like Entick v. Carrington and Wilkes v. Wood,  which were about what kinds of warrants were permitted to conduct a physical search.  But a central challenge of modern Fourth Amendment “search” law has been that technology allows for so many equivalents of physical searches that do not involve actual physical intrusion.

There is broad agreement that the Fourth Amendment needs to extend beyond actual physical intrusion: If it didn’t, the role of the Fourth Amendment would diminish over time in a world of wiretapping, thermal imaging, and network-stored records.  The hard question is, what’s the test for how to make sure the Fourth Amendment maintains that role over time, preserving its protections as technology changes?

The Court has not done the best job at articulating this, I think.  It did a few things that make it extra hard. Two under-appreciated things stand out.

First, the Court has ignored a lot of the Fourth Amendment’s text, which made the issue a lot harder to understand.  The Fourth Amendment prohibits unreasonable “searches” of “persons, houses, papers, and effects.”  But the Court’s precedents have often just described the issue as being what is a “search,” ignoring the required thing to be searched in that language: “persons, houses, papers, and effects.”  The word “search” has long had a range of different meanings, going back to 18th Century, and reducing the question to that one word adds a lot of confusion: It strips the constitutional question of its context and its history of the cases like Wilkes, Entick, and the Writs of Assistance case.

Of course, the full text is not always ignored.  As the Court’s curtilage caselaw has frequently noted, the Fourth Amendment “indicates with some precision the places and things encompassed by its protections:  persons, houses, papers, and effects.” Florida v. Jardines, 569 U.S. 1 (2013).  But I think it has been under-appreciated that the proper question is not what is a “search” in some isolated or abstract sense, but rather what is a “search” of “persons, houses, papers, and effects” that reflects the understanding of those terms in the major disputes that inspired the enactment of the Fourth Amendment.

Second, many modern Justices have assumed the correctness of a simple narrative about the Fourth Amendment that Justice Brennan introduced in Warden v. Hayden, 387 U.S. 294 (1967).  Looking for a framework to justify lots of innovations in Fourth Amendment law, Justice Brennan made a pitch that the Fourth Amendment had previously been based on property principles but was henceforth to based on privacy principles:

The premise that property interests control the right of the Government to search and seize has been discredited. Searches and seizures may be “unreasonable” within the Fourth Amendment even though the Government asserts a superior property interest at common law. We have recognized that the principal object of the Fourth Amendment is the protection of privacy rather than property, and have increasingly discarded fictional and procedural barriers rested on property concepts.

Note that Justice Brennan’s property-to-privacy narrative pre-supposed a switch with two parts.  First,  that there was a property era before the 1960s; and second, that some kind of new thinking was needed that was based on privacy.

As I see it, this was malarkey.  Fourth Amendment law had long been based on a mix of appeals to property-ish notions and privacy-ish notions, going back to 18th Century English debates on general warrants, through 19th Century U.S. cases on the Fourth Amendment, and through the early 20th Century.   There wasn’t an actual property era, and the extension of the Fourth Amendment beyond physical intrusion (generally expressed under the Katz privacy test) is entirely consistent with the prior understandings, the Fourth Amendment’s original public meaning, and the constitutional text.  But property-to-privacy was Justice Brennan’s pitch, and it has exerted a strong influence on how later scholars and Justices imagined both Fourth Amendment history and its current role.

It seems to me that once you go back to the full text of the Fourth Amendment, and once you recognize that Justice Brennan’s property-to-privacy narrative was not accurate, it becomes easier to think through how to deal with the Fourth Amendment search test. The question should be what is a “search” of “persons, papers, houses, and effects,” both for actual physical intrusions (as were the facts at issue when the Fourth Amendment was enacted) and for the modern technological equivalents of those physical intrusions (as have to be recognized to maintain the Fourth Amendment’s role in a technological world).  Identifying the modern technological equivalents can be a challenge, for all the reasons that identifying persuasive analogies in law can be a challenge.  But that, I think, should be the goal.

The difficulty for the Court, though, is that the past treatment of this issue leaves current Justices with a lot of different pieces of the puzzle to latch on to.  The heavy influence of Justice Brennan’s framework has caused a modern split, with some Justices wanting to go back to a property approach that never existed.  If you think the privacy approach is right and requires new understandings of privacy, you run into the challenge of what that privacy test is supposed to mean.  If you turn to the text and focus only on the word “search” in the abstract, putting aside the rest of the text and the 18th century usage in cases like Entick and Wilkes, you run into the many definitions of what is a search that doesn’t itself provide any guidance as to which definition applies.

And the common law doesn’t help here, either.  What we today see as search and seizure law was at common law considered a set of rules that typically provided affirmative defenses to otherwise-existing causes of action.  It was a question of what powers existed, and therefore what causes of action could be maintained. This means that, although there was discussion of “searches” and “seizures” in the 18th century cases like Entick and Wilkes in discussions of the facts of those cases, there was no legal concept of what was a “search” or “seizure.” The issue just didn’t arise under the legal system that existed then.

Granted, many of those cases arose in the setting of trespass actions, in which the validity of the warrant was an affirmative defense to a trespass claim for breaking into a house.  But the framing-era debate over warrants was not just about trespass actions, or even just about affirmative defenses. In the Writs of Assistance case, for example, James Otis’s arguments against general warrants were made in a representation of Boston merchants who opposed general warrants. Otis (unsuccessfully) argued on behalf of the merchants whose places might be raided that the writ to issue those warrants could not be renewed. In other cases, the affirmative defenses arose as defenses to criminal prosecution.  The law was about what otherwise-existing actions could be maintained, so there was no sense of what might trigger the set of rights.  I tend to doubt this would have been thought of as a coherent question at the time of the Fourth Amendment’s enactment.

To make matters even harder from a judicial administration context, these different approaches are often neither inherently broader nor narrower than others.  They’re just different, with the differences in actual scope often rather unclear.  That makes it extra hard in a world governed by the Marks test, in which lower courts are bound by the narrowest opinion in favor of the winning side when there is no majority opinion.  Under Marks, unless the Court can get to five votes on a particular rationale as to whether there is or is not a search, lower courts may be unable to know which of these different tests to apply.

Of course, it’s entirely possible that a majority of the Justices will be able to reach agreement on these issues in Chatrie.  If so, it could really help lower courts understand how to work through these issues. But given all of these strands of thought, it’s a difficult puzzle to work through.

Oral argument is Monday, 10 a.m. Eastern.