A major split seems to be developing between conservative justices Neil Gorsuch and Samuel Alito over the issue of property rights and the Fourth Amendment.
The most recent evidence of this division came on January 9, when the U.S. Supreme Court heard oral arguments in Byrd v. United States. This case arose in 2014, when a woman named Natasha Reed rented a car and allowed her fiancé, Terrence Byrd, to drive it in violation of her rental contract, which listed her as the sole authorized driver. When the state police stopped Byrd for a minor traffic infraction, the officer searched the trunk and discovered heroin and several flak jackets. Byrd is fighting to have that evidence thrown out as the fruits of an illegal search.
The question presented to the Supreme Court is this: "The Fourth Amendment protects people from suspicionless searches of places and effects in which they have a reasonable expectation of privacy. Does a driver in sole possession of a rental vehicle reasonably expect privacy in the vehicle where he has the renter's permission to drive the vehicle but is not listed as an authorized driver on the rental agreement?"
During the oral arguments, Justice Neil Gorsuch observed that Byrd's lawyer, Robert Loeb, had offered a property rights theory "on which you might prevail." That theory, "essentially as I understand it," Gorsuch said, is "that possession is good title against everybody except for people with superior title."
"We think the property interest here, the right that...Mr. Byrd would have had to bring a trespass action," Loeb replied, "demands a recognition of his right to invoke the Fourth Amendment."
In other words, Byrd had "possession" of the car under common law principles. If, while driving it, somebody else tried to break in and steal it from him, he would have a common law right "to bring a trespass action," as Loeb put it, against that would-be thief. In this case, the trespasser is law enforcement, which, absent probable cause, has no authority to search the trunk.
Justice Samuel Alito apparently did not like the sound of that. "The problem with going down this property route is that we go off in search of a type of case that almost never arose...at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. When would that ever have happened in 18th-century America? Never."
Loeb pushed back on Alito's characterization. "It's your right to bring trespass action against a stranger," he told Alito. "The fact that you can exclude a stranger and bring a trespass action against him is what supports your property right under the Constitution."
A few minutes later, Alito tried to poke another hole in the property rights theory that Gorsuch had seemingly endorsed.
"The Constitution uses the word 'property' numerous times," Alito told Loeb, "but the word 'property' doesn't appear in the Fourth Amendment. It talks about effects, which is defined by Samuel Johnson's dictionary as 'goods or movables.'... Is it your argument that any property interest whatsoever falls within the definition of effects if we are going to go back to an originalist interpretation of the Fourth Amendment?"
"I think if the common law recognizes your [right]," Loeb replied, "then both under the common law and common sense, that it makes sense to recognize a right to invoke a Fourth Amendment right."
Gorsuch remained quiet during those exchanges between Alito and Loeb. But he spoke up again in favor of the property rights theory during the second half of the oral arguments, when Assistant to the Attorney General Eric Feigin was presenting the government's side of the case.
According to Feigin, Byrd, "like other unauthorized drivers, simply has no connection to the car at all."
"Mr. Faigin, you keep saying that," Gorsuch said, "but as a matter of property law, now and forever, a possessor would have a right to exclude other people but for those with better title. So someone in this position would have a right, I think you'd agree, to exclude someone who's attempting to get in the car to hijack it, carjack it. You'd also have a right to throw out a hitchhiker who had overstayed his welcome....I think you're having to argue that the government has a special license that doesn't exist for any other stranger to the car."
Feigin rejected that description of the government's position.
"Do you agree that— that Mr. Byrd could have excluded a carjacker?" Gorsuch asked.
"I think by virtue of simply being in the car, he probably could have fended off a carjacker and we wouldn't oppose his right to do so," Feigin answered.
"By virtue of his possession he would have a right to do so," Gorsuch corrected him. "And he would have a right to throw out a hitchhiker as well....So why not the government?"
To summarize: Gorsuch pushed a property rights theory of the Fourth Amendment that, if adopted by the Supreme Court, would cause the government to lose this case and plenty of others. Alito promptly spoke up in opposition to that theory. A little bit later, Gorsuch advanced the theory again in greater detail.
If that dynamic sounds familiar, it's because we've already seen it once before. In the November 2017 oral arguments in the warrantless cell phone records search case Carpenter v. United Staes, as I noted at the time, "Gorsuch proffered a property rights argument that might allow Carpenter to win the case, and Alito came out swinging hard against it."
I suspect that Gorsuch and Alito's battles over this issue are just getting started.