What is the intent requirement of the Fourth Amendment?
On Tuesday, the 11th Circuit identified a circuit split on an interesting Fourth Amendment question: For a Fourth Amendment "search" to occur, is it only the government's act that matters, or is there also a purpose requirement for the government's act?
The issue arose in Doe v. Milward, which involved extremely unusual facts for a Fourth Amendment case. The plaintiffs in the case are female students studying at a public college to become medical technicians specializing in sonography. The plaintiffs claim that employees of the college pressured the plaintiffs to perform transvaginal ultrasounds on each other as a condition of staying enrolled at the school. According to the complaint, the defendants believed that female students would be better sonographers if they underwent transvaginal ultrasounds themselves. (To be clear, it's not known whether these allegations are true. These are just the claims in the complaint, which at this point in the case are assumed to be true.)
Among the plaintiffs' arguments is that effectively forcing them to undergo the ultrasounds violates the Fourth Amendment because a transvaginal ultrasound is a Fourth Amendments search. The defendants responded that there was no search because the government actors at the school did not have an investigative or administrative purpose in forcing the ultrasounds. The district court agreed with the defendants.
In an opinion by Judge William Pryor, the 11th Circuit ruled that the compelled ultrasounds alleged in the complaint were clearly Fourth Amendment searches regardless of their purpose:
Inserting a probe into a woman's vagina is plainly a search when performed by the government. Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search "has undoubtedly occurred." United States v. Jones, 132 S. Ct. 945, 950-51 & n.3 (2012). The Supreme Court has long recognized that compelled blood and urine tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, 616 (1989) (citing Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber v. California, 384 U.S. 757, 767-68 (1966)). Even under the broader test that a "search" is "any governmental act that violates a reasonable expectation of privacy," O'Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each ultrasound clearly constituted a search. "[I]t is obvious" that the "compelled intrusio[n] into the body . . . infringes an expectation of privacy that society is prepared to recognize as reasonable." Skinner, 489 U.S. at 616 (internal quotation marks and citations omitted).
Although the employees did not conduct the transvaginal ultrasounds to discover violations of the law, the word "search" in the Fourth Amendment does not contain a purpose requirement.
Pryor relied heavily on the Supreme Court's 1992 decision in Soldal v. Cook County that stated the following:
[T]he reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the [Fourth] Amendment applies. What matters is the intrusion on the people's security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all. As we have observed on more than one occasion, it would be "anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior." 506 U.S. 56, 69 (1992) (emphases added) (quoting Camara v. Mun. Court of San Francisco, 387 U.S. 523, 530 (1967)).
Pryor then recognized that other circuits had adopted a different view of the law:
We acknowledge that several of our sister circuits require an investigative or administrative purpose even after Soldal in decisions involving "peeping Toms," but we find their reasoning unpersuasive. See, e.g., Doe v. Luzerne Cty., 660 F.3d 169, 179 (3d Cir. 2011) (concluding no search occurred when a male police officer filmed a female police officer in the shower); Poe v. Leonard, 282 F.3d 123, 137 (2d Cir. 2002) (similar). For instance, the decision in Luzerne County did not even cite Soldal. The decision in Poe did, but it confined Soldal to disputes arising from an investigation by the government as an employer or in the course of an official performing a traditional governmental function. Poe, 282 F.3d at 136-37. In support, the court in Poe relied on five Supreme Court decisions, including Soldal, that it interpreted as arising in those circumstances. Id. We think the decision in Poe reads Soldal too narrowly. The Supreme Court did not suggest its holding was limited to instances involving a government employer-driven investigation or an officer performing a traditional governmental function. Instead, it held broadly, "What matters is the intrusion on the people's security from governmental interference." Soldal, 506 U.S. at 69. Moreover, even if we found these decisions persuasive, we must follow our decisions until they are overruled by the Supreme Court or an en banc decision of this Court. United States v. Vega-Castillo, 540 F.3d 1235, 1236 (11th Cir. 2008). The holding of Lenz [v. Winburn, 51 F.3d 1540 (11th Cir. 1995),] squarely forecloses the ruling by the district court.
Two thoughts: First, it's not clear to me whether the 2nd and 3rd Circuit cases require an investigative/administrative purpose or whether they are more case-specific applications of the state action requirement. Just on a quick skim, it's possible to read them as saying that the acts were undertaken in a personal capacity and were therefore not attributable to the government.
Second, I think there is a sort of Fourth Amendment intent requirement under Footnote 5 of United States v. Jones. Here's the key language from Jones with my emphasis added:
The concurrence notes that post-Katz we have explained that "'an actual trespass is neither necessary nor sufficient to establish a constitutional violation.' " Post, at 6 (quoting United States v. Karo, 468 U. S. 705, 713 (1984)). That is undoubtedly true, and undoubtedly irrelevant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but "when there is some meaningful interference with an individual's possessory interests in that property." Post, at 2 (internal quotation marks omitted). Likewise with a search.
Trespass alone does not qualify [to be a search], but there must be conjoined with that what was present here: an attempt to find something or to obtain information.
Related to this, and similarly irrelevant, is the concurrence's point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. See ibid. Of course not. A trespass on "houses" or "effects," or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.
Is it possible to square Jones with Soldal? I think so, because a government agent can have a purpose to obtain information without a broader investigative or administrative purpose. The question of investigative or administrative purpose is arguably more an issue of motive than intent. It asks, "Why did the officer want to obtain the information?" That is distinct from whether the officer intended to obtain information at all.
The difference is suggested by the Lenz precedent from 1995. In Lenz, a guardian ad litem went through a young girl's closet to help gather clothes that the girl needed to bring to a new home. Citing Soldal, the 11th Circuit rejected the defendant's argument that no search occurred because there was no investigative purpose in entering the closet. At the same time, it seems clear that under Jones, the guardian ad litem had a purpose to obtain information. The point of entering the closet was to find the clothes.
If we can reconcile Soldal and Jones Footnote 5 in that way, I'm not entirely sure how it would apply to the facts of the new decision. Either way, the language in Jones Footnote 5 seems worth flagging for those interested in the case.