by Rachel Sharma
The Supreme Court of the United States, in its attempts to interpret the Fourth Amendment of the Constitution, has struggled with one overall question: what is the best reasoning to protect people from unreasonable searches and seizures? Earlier case law concerning the Fourth Amendment focused on the property rights of private citizens and their freedom against trespass. However, in 1967, the decision in Katz v. United States changed the Court’s focus from property rights to a right to privacy when considering possible Fourth Amendment violations. Justice Harlan’s concurrence introduced the idea of a “reasonable expectation of privacy”.[1] From this moment forward, the Fourth Amendment could be interpreted as protecting against trespass, “unauthorized intrusion” onto or in property, or as protecting privacy, what a reasonable person would believe is private.[2] Privacy is a stronger rationale than trespass as it provides more comprehensive protection under the Fourth Amendment as technology progresses. This is exemplified in the case United States v. Jones.
In United States v. Jones, the petitioner was under suspicion of trafficking narcotics. Federal agents installed a GPS tracking device underneath the car registered to the petitioner’s wife while it was parked in a public parking lot. They tracked his whereabouts for 28 days. The tracker was used outside the dates and jurisdiction specified in the court-issued search warrant. This data collected was then used to indict the petitioner on drug conspiracy charges. The District Court suppressed the GPS data collected while the vehicle was at the petitioner’s residence but allowed the data while on public streets because he did not have a “reasonable expectation of privacy” on public streets. For these reasons, the petitioner was convicted. However, the D.C. Court of Appeals reversed this decision on the grounds that the evidence was obtained in violation of the Fourth Amendment.[3] The case was then appealed and granted a writ of certiorari by the Supreme Court.
The Court unanimously held, in an opinion written by Justice Antonin Scalia, that this was an unlawful search under the Fourth Amendment and upheld the decision D.C. Court of Appeals.[4] However, the multiple opinions filed by the justices depict an ongoing debate concerning the main focus of the Fourth Amendment.
Justice Scalia begins by explaining his reason for belief of an unlawful search in determining whether the situation was indeed a search. In his reasoning, Scalia makes a point about the Fourth Amendment and part of his argument against privacy:
The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the phrase ‘in their persons, houses, papers, and effects’ would have been superfluous. [5]
Justice Scalia is known to be an originalist, and due to this he favors trespass – as it is rooted in property rights, which are specifically defined within the Constitution — over the right to privacy, which was created by the judiciary. Privacy, although based in the Fourth Amendment because of Katz, is still a protection under the law created by the Courts and not the legislature. For an originalist like Justice Scalia, this makes it weaker as legal doctrine. Justice Scalia also references some of the comments made by Justice Alito in his concurrence of judgment by pointing out that if the Court replaced trespass protections with privacy protections, more problems and questions would arise that the Court cannot answer.[6] In this majority opinion, Justice Scalia favors trespass over privacy because of his method of interpreting the constitution.
Justice Sotomayor’s concurrence shows her beliefs on privacy and the complicated role that they inhabit in the court today. She is advocating for privacy-based reasoning; however, she makes the argument of a balance between trespass and privacy; however, Justice Sotomayor believes the trespass test to determine a search is not enough to protect the rights of the American people. This is made evident in a statement made in this concurrence: “By contrast, the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum”.[7] Justice Sotomayor states that privacy under Katz adds to trespass reasoning, but rather than replacing trespass reasoning. In the case of Jones, Justice Sotomayor makes it clear that “[w]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected”.[8]
Justice Alito’s concurrence in judgement is in direct conflict with Justice Scalia’s majority opinion in United States v. Jones. Although he still agrees with the holding of the case, Justice Alito does not agree with the main reasoning of the case. Using trespass to justify the Fourth Amendment strains its language. Justice Alito states that trespass is outdated because it is 18th century law, and therefore not applicable to the new, emerging technology of today. He also believes that the Court should use privacy in its reasoning of the Fourth Amendment under the expectation that one day technology will make it possible to get information without a technical trespass. Justice Alito even makes fun at trespass law by saying that “the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels.” [9] Justice Alito’s and Justice Sotomayor’s opinions both give ample evidence that privacy has a stronger rationale than trespass because trespass is outdated, and privacy is more equipped to handle the technological advancements of the future. And, trespass is only the minimum of protections from unreasonable searches and seizures.
Although trespass is older legal reasoning, privacy is stronger because of its adaptability to new technologies. Unlike trespass, the right to privacy can disappear if its cases were overturned. It is still a possibility, one that gives privacy less solid footing in the legal reasoning world, even as Supreme Court Justices have used trespass law for centuries when determining lawful searches and seizures. Privacy was not introduced until 1967, in Katz v. United States. However, privacy has been used countless times as legal reasoning since its conception and it allows for more rights and protections for the American people. This is imperative as technology becomes more advanced, due to the increased likelihood that the government will use this technology for purposes related to searches and seizures of information. The right to privacy, while only an interpretation of the Fourth Amendment to the Constitution, protects people from unreasonable governmental intrusion far better than trespass.
[1] Katz v. United States, 389 U.S. 347 (1967).
[2] Id.
[3] United States v. Jones, 565 U.S. 1-2 (2012).
[4] United States v. Jones 565 U.S. 1-2 (2012).
[5] United States v. Jones 565 U.S. 4 (2012).
[6] United States v. Jones 565 U.S. 1-14 (2012).
[7] United States v. Jones 565 U.S. 1-6 (2012).
[8] Id.
[9] United States v. Jones 565 U.S. 1-14 (2012).