What's the Original Public Meaning of "Searches" in the 4th Amendment?

And how, if at all, is the Katz test different?

I recently helped put together a panel, that you can watch below, on an important question of Fourth Amendment history and law: What is the original public meaning of "searches" of "persons, houses, papers, and effects" in the Fourth Amendment? And how is the Katz reasonable-expectation-of-privacy test different?  I've been very interested in this question for a few years now, and wrote my recent article Katz as Originalism about the topic (which was in turn inspired by a few blog posts I wrote here at the Volokh Conspiracy).  I was joined by the elusive Fourth Amendment historian William J. Cuddihy, author of the massive tome The Fourth Amendment: Origins and Original Meaning 602-1791, and my colleague Andrea Roth.

Comments

[Noscitur a sociis]

What makes Prof. Cuddihy elusive?

[Leo Marvin]

Here's what that reminded me of. For some reason it was a meme in the Before Times.

Thanks for making me date myself. Of course I was a mere embryo, but still.

[Á àß äẞç ãþÇđ âÞ¢Đæ ǎB€Ðëf ảhf]

My IANAL attitude is that the 4th amendment is all about privacy and keeping the government's snoopy hands off people's private property. All this quibbling about curtilage, peeking through windows, attaching GPS trackers to cars, installing cameras on utility poles ... it's all in violation of "hands off" and "mind your own business".

Another way to think of it is could I do it to the cop? If I'd go to jail for doing so, then so should the cop who does it. Get a warrant! And judges rubber stamp way too many warrants. Make every 100th warrant a fake, with fake address etc, and if the judge rubber stamps that too, fire his ass and throw him in jail. A week is enough.

[Noscitur a sociis]

Sounds like something akin to the trespass model, or possibly the positive law model developed by Prof Baude: https://harvardlawreview.org/2016/05/the-positive-law-model-of-the-fourth-amendment/

I find it doctrinally attractive and largely straightforward to apply, but it does have the disadvantage (from a privacy rights perspective) of unambiguously permitting things like the eavesdropping at issue in Katz itself, as well as warrant less polecams, and is tough to reconcile with decisions like Kyllo (thermal imaging). Prof. Baude suggests the theory would support the outcome in Carpenter (requiring a warrant for historical cell site location data) but I’m not so sure, or at least not so sure that it couldn’t be changed through a fairly modest statutory change.

[The Margrave of Azilia]

Sounds good - I wouldn't insist on rummaging through dusty parchments to get to this result, this is like the Potter Stewart test, only with searches instead of hard-core pornography.

[JasonT20]

My IANAL attitude is that the 4th amendment is all about privacy and keeping the government’s snoopy hands off people’s private property.

Good thing that you specified private property. Otherwise, I might have thought you were advocating for a general right to privacy. After all, we have to be sure the government is limited in getting its hands on our stuff, but it still has to be able to tell us what to do or not do with our own bodies, right?

[CJColucci]

If not "reasonable expectation of privacy," then what? In substance, of course, not phraseology.

[Noscitur a sociis]

There’s Prof. Baude’s proposal I linked above:

The touchstone of the search-and-seizure analysis should be whether government officials have done something forbidden to private parties. It is those actions that should be subjected to Fourth Amendment reasonableness review and the presumptive requirement to obtain a warrant. In short, Fourth Amendment protection should depend on property law, privacy torts, consumer laws, eavesdropping and wiretapping legislation, anti-stalking statutes, and other provisions of law generally applicable to private actors, rather than a freestanding doctrine of privacy fashioned by courts on the fly.

[Orin S. Kerr]

Which creates absurd results, and has nothing to do with the Fourth Amendment's text, history, or purpose, but is otherwise very interesting.

[Brett Bellmore]

The problem with saying that something "produces absurd results" is you're going to continually run into people who have a different sense of what's absurd.

And if we find that property law, privacy torts, consumer laws, and so forth, would allow cops to do things we don't want cops doing, maybe the truth is, we don't want non-cops doing them either, and all those laws need some tweaks.

[Rossami]

There may be some unexpected implications but they are no more absurd than the current doctrine's results.

[Alpheus W Drinkwater]

"...has nothing to do with the Fourth Amendment’s text, history, or purpose..."

Determining the purpose of constitutional text is my favorite originalist chimera.

[Orin S. Kerr]

I meant to refer to all claimed purposes of the Fourth Amendment, among originalists and non-originalists alike, though.

[Stephen Lathrop]

And if those are in contradiction, then what?

[Brett Bellmore]

I think Baude has it: A "warrant" is just precisely judicial permission to do something a private party couldn't legally do.

[JasonT20]

A “warrant” is just precisely judicial permission to do something a private party couldn’t legally do.

I kind of think that the whole point of governmental law enforcement is to be able to do things that a private party couldn't legally do in order to enforce the law. You know, government monopoly on legitimate use of force and everything as opposed to anarchy.

[Brett Bellmore]

"I kind of think that the whole point of governmental law enforcement is to be able to do things that a private party couldn’t legally do in order to enforce the law."

Not originally, no. The original concept was that the government was hiring people to do professionally what regular citizens were themselves entitled to do. And if they were going beyond that, they needed a judge to sign off on it.

"You know, government monopoly on legitimate use of force and everything as opposed to anarchy."

That's the theory of government that we'd explicitly repudiated in forming our own.

[Noscitur a sociis]

I’m not all in on the public law model (despite looking like an apologist for it in the comments here), but it doesn’t say that the police can’t do anything that a private person couldn’t: it says that the need a warrant (or an applicable exception to the warrant requirement) to do it. And the fact that the police are the only ones who can get warrants is consistent with your interpretation,

[Brett Bellmore]

But, in fact, non-police CAN get warrants, under state law, in many states. We also have bounty hunters catching fugitives, repossession agents going after property, citizen's arrest...

The primary difference is that there's no unqualified immunity for private citizens doing these things. But that's just to say that the government extends privileges to its own.

[Noscitur a sociis]

Most (all?) states allow private parties to make warrantless arrests, and a handful allow them to apply for a criminal complaint, which could theoretically be accompanied by an arrest warrant. If there is even a single state that either allows a private person to apply for a search warrant (which is the kind of warrant that this discussion is really about) or authorizes a private person to serve either kind of warrant without law enforcement supervision, I would be fascinated to learn about it.

[Brett Bellmore]

My point is just that the police started out as people hired to do full time what citizens were already entitled to do. Who needed judicial authorization to go beyond that. Over time the government started depriving citizens of those powers, and giving their own minions increased powers and immunities.

But the process isn't quite finished yet, you can still see remnants of their former status here and there.

[Absaroka]

"Over time the government started depriving citizens of those powers"

Can you give an example?

I will grant this: in 1850 if you saw someone stealing your wagon, the recommended course of action was not to use your cell phone to have a radio equipped patrol car dispatched to catch the thief, because those didn't exist. As a practical matter, your only option to stop the thief was to intervene personally.

And today, if you see someone stealing your car, the recommended course of action is to call 911 and let them deal with it.

But has the *law* actually changed? My sense is that you can still intervene to stop the theft. Given the risks and the option of calling 911, it may not be smart to do so, but you still can (and might want to if, for example, calling 911 isn't an option because you are at a trailhead or some such).

[Noscitur a sociis]

If that was your point, why didn’t you say that, instead of saying “But, in fact, non-police CAN get warrants, under state law, in many states”?

[CJColucci]

A laundry list of exactly the sorts of things that would inform a court about what society would think of as reasonable expectations. Sounds like phraseology over substance. There's a lot of that going around.

[Dr. Ed 2]

And then there's the reality of the fact that this is all moot.

The police can do whatever they damn well please -- put a sheet of plywood over the front door of your home and lock you out -- they can. Let everyone else but you into your home -- again, they can do that with impunity. And loot your home, again, that's OK.

So why are we worrying about the procedural niceties of a bygone era???

[Stephen Lathrop]

Professor Kerr, I am not qualified to tell you anything about law, contemporary law, or founding-era law. I suggest however that you may find it worthwhile to explore colonial records which record complaints about the Stamp Act. There was an invasion-of-privacy aspect to that, and I believe it was keenly felt. You might conclude from some of it that there was objection to unwarranted searches as en evil in themselves, to be prevented without regard to subsequent legal consequences.

[Drewski]

History, perhaps, but text and purpose? How is that proposal not related to the text and purpose? Are you suggesting the text doesn't include a reasonableness requirement, or that a proposal to define the contours of that requirement isn't germane to the purpose of 4A? I can't help but feel you're carrying some personal grudge against Baude that's leading you to fire off stock-phrase criticism that isn't really on point. I hope you don't do that with your students' work.

[Brett Bellmore]

Was not expecting that 2nd amendment rant.

[Rev. Arthur L. Kirkland]

That is a great presentation. Thank you for the pointer.

[Stephen Lathrop]

Another historical point for Professor Kerr. During the two centuries prior to the founding, the British legal system was notably arbitrary. It was also systematically biased toward nobility, and any other persons who qualified as British free men. That left out the vast majority of the population, which was ruled largely at whim by local barons, magistrates and justices of the peace.

In that system, you might find legal language to insist that requirements for a warrant were protective of English rights, or less idealistically, to say they were a safeguard to assure valid convictions. But none of that mattered for a commoner who might or might not get a fair trial, (and certainly would not expect one) and who was without practical recourse if he didn't.

America's founders were as a matter of stated intent committed to reject that kind of class-bound jurisprudence. As a matter of fact, it took a long time to shake off the former tradition, especially throughout the South.

What the law said and what a court might do could not be counted on to coincide, especially for ordinary citizens. If you are genuinely interested in understanding the original meaning of the 4A, you have to take those complicating realities into account. A great many Americans thought of unwarranted justice as an evil in itself. Which is to say it could not be cured afterward by a just outcome in a courtroom. One way to think of that is to distinguish between an intent to prevent injustice in court, and an intent to prevent unjust warrants altogether. The latter probably influenced founding era understanding of the 4A more than it does now.