The Founders grounded the Fourth Amendment not in privacy, but in principles of property law, as Justice Scalia explained in United States v. Jones (132 S.Ct. 945 ):
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. (Id. at 949.)
As we explained in our brief, the rule of law has been abandoned by many Supreme Court justices on many occasions in the past. Indeed, some justices have not even tried to hide their belief that they are not bound by the Constitution. For example, in his autobiography, Justice William O. Douglas recounted a statement that Chief Justice Charles Evans Hughes made to him about how the Court operates: “Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety percent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections” (William O. Douglas, The Court Years, p. 8 [Random House 1980]).
Despite such judicial emotion and predilections, the tide recently has been turning. The U.S. Supreme Court’s 2012 decision in United States v. Jones backed away from the Court’s amorphous privacy doctrine, signaling a return to the Fourth Amendment’s original property law base. Consistent with our amicus curiae brief filed in Jones, the Court ruled unlawful a surreptitious trespass upon a person’s vehicle to place a GPS tracking device, whatever an owner’s expectation of privacy, or lack thereof. Then, just one year later, in Jardines v. Florida (133 S.Ct. 1409 ), the Court resolved that the Fourth Amendment had been violated by the police coming on a person’s property with a drug-sniffing dog.
Twice, then, the Court has recently chosen to address the Fourth Amendment issue on property grounds, subordinating privacy to the property right of the people to be free from trespassing law enforcement agents.
Despite the unmistakable property basis of these two recent Supreme Court cases, lawyers and courts have continued to argue and address Fourth Amendment issues according to the now-downgraded privacy rationale. This is what happened in Wurie and Riley, where neither the U.S. Court of Appeals for the First Circuit – nor the California court, nor the federal government, nor the State of California, nor even the individual defendants – argued based on the Fourth Amendment property principles at stake in this litigation. All litigants argued about a “reasonable expectation of privacy.” Asking the wrong question, they may very well get the wrong answer.
Under a textual property analysis, the government must demonstrate that it has a superior property interest in a “person, house, paper, or effect” in order to justify a search or seizure. Historically, upon arrest, a person could be separated from certain items of personal property, such as weapons, that might help him escape; but that was based on the government’s superior property interest over the person being arrested, not over any other items, especially the arrestee’s papers and effects.
Even when items of personal property are seized during an arrest, they are still the arrestee’s property; and the government is required to “keep and hold” the items, serving as a bailee, until the person is released. The government is not allowed to rummage around the contents of a cell phone in search of evidence of a crime, such as occurred in Wurie.
Our amicus curiae brief gave a play-by-play description of the Court’s earlier abandonment of the Constitution’s text, and urged the Court again to return to property principles in analyzing the issue before it – searches incident to arrest. Our brief even suggested that it may be necessary to order that the case be rebriefed and re-argued to put property principles front and center.
If Wurie and Riley are decided in accordance with the property principles embodied in the Fourth Amendment, the government most certainly will lose. However, if the case is decided in accordance with whatever five justices may think a “reasonable expectation of privacy” should include, it is anyone’s guess who will prevail.
Robert J. Olson, Herbert W. Titus, and William J. Olson are attorneys with William J. Olson, P.C. of Vienna, Virginia. E-mail firstname.lastname@example.org, visit www.lawandfreedom.com, or follow www.Twitter.com/OlsonLaw.