Michigan Law Review Michigan Law Review
Volume 118 Issue 2
2019
Fourth Amendment Textualism Fourth Amendment Textualism
Jeffrey Bellin
William & Mary Law School
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Jeffrey Bellin,
Fourth Amendment Textualism
, 118 MICH. L. REV. 233 (2019).
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233
FOURTH AMENDMENT TEXTUALISM
Jeffrey Bellin*
The Fourth Amendment’s prohibition of “unreasonable searches” is one of
the most storied constitutional commands. Yet after decades of Supreme
Court jurisprudence, a coherent definition of the term “search” remains sur-
prisingly elusive. Even the justices know they have a problem. Recent opin-
ions only halfheartedly apply the controlling “reasonable expectation of
privacy” test and its wildly unpopular cousin, “third-party doctrine,” with a
few justices in open revolt.
These fissures hint at the Court’s openness to a new approach. Unfortunately,
no viable alternatives appear on the horizon. The justices themselves offer lit-
tle in the way of a replacement. And scholars’ proposals exhibit the same
complexity, subjectivity, and illegitimacy that pervade the status quo.
This Article proposes a shift toward simplicity. Buried underneath the doc-
trinal complexity of the past fifty years is a straightforward constitutional di-
rective. A three-part formula, derived from the constitutional text, deftly
solves the Fourth Amendment “search” conundrums that continue to beguile
the Court. This textualist approach offers clarity and legitimacy, both long
missing from “search” jurisprudence. And by generating predictable and sen-
sible answers, the proposed framework establishes clear boundaries for police
investigation while incentivizing legislators to add additional privacy protec-
tions where needed.
TABLE OF CONTENTS
INTRODUCTION................... . .... .... .. . ...............................................................234
I. A SHORT HISTORY OF THE CURRENT PREDICAMENT..................245
A. The Pre-Katz Era’s Ca sual Textualism ..................................245
B. Katz and the “Reasonable Expectation of Privacy” Test ......248
C. Post-Katz Textual Drift ........................... ... ..... ... ... .... . ... .. ........251
II. A RETURN TO THE FOURTH AMENDMENT’S TEXT.......................254
A. Defining “Search” ....................................................................254
B. “Persons, Houses, Papers”.............................. . .........................260
* Professor of Law and University Professor for Teaching Excellence, William & Mary
Law School. Thanks to Evan Caminker, Bennett Capers, Adam Gershowitz, Rachel Harmon,
Orin Kerr, Jamie Macleod, Erin Murphy, and Chris Slobogin for comments on an early draft,
and to Fred Dingledy for research support.
234 Michigan Law Review [Vol. 118:233
C. “And Effects” ....................................... ... . .... ... ... ... ... .. ...... .... ... ...262
D. “Their” Replaces Third-Party Doctrine and Standing..........266
III. APPLYING AN OLD TEXT TO NEW TECHNOLOGIES......................274
A. Searches of Persons................................. ..................................275
B. Public Surveillance and Tracking ...........................................276
C. Intercepting Electronic Signals and the
Internet of Things .....................................................................278
CONCLUSION ..................................................................................................282
INTRODUCTION
“The right of the people to be secure in their persons, houses, papers, and
effects, against unreasonable searches and seizures, shall not be violated . . . .”
— United St ates Constitution, Amendment IV
The Fourth Amendment prohibits unreasonable “searches” and “sei-
zures.” This places the Supreme Court’s definition of the term “search” at the
center of the always-evolving balance between privacy and security. Techno-
logical advances offer the government a steady stream of novel investigative
techniques, but only those that qualify as “searches” (or “seizures”
1
) trigger
Fourth Amendment protections.
2
Ever since the 1967 case Katz v. United Stat es, the Supreme Court has
framed the “is-it-a-search?” inquiry by asking whether the police invaded the
1. This Article addresses “searches,” not “seizures.” Existing jurisprudence coherently
defines “seizures” in light of the text and history of the Fourth Amendment. See United States
v. Jacobsen, 466 U.S. 109, 113–14, 113 n.5 (1984) (explaining that a “ ‘seizure’ of a person with-
in the meaning of the Fourth Amendment” constitutes “meaningful interference, however
brief, with an individual’s freedom of movement,” and a “ ‘seizure’ of property occurs when
there is some meaningful interference with an individual’s possessory interests in that proper-
ty”); 1 WAYNE R. LAFAVE, SEARCH AND SEIZURE § 2.1(a), at 563–64 (5th ed. 2012) (“The word
‘seizures’ in the Fourth Amendment has, in the main, not been a source of difficulty.”). For an
argument that the term “seizures” should be interpreted more broadly, see Paul Ohm, The
Olmsteadian Seizure Clause: The Fou rth Amendment and the Seizure of Intangible Property,
2008 ST
AN. TECH. L. REV. 2.
2. See U.S.
CONST. amend. IV; Thomas K. Clancy, What Is a “Search” Within the
Meaning of the Fourth Amendment?, 70 ALB. L. REV. 1, 1–2 (2006) (explaining that “[t]here are
‘few issues more important to a society’ ” (quoting Anthony G. Amsterdam, Perspectives on the
Fourth Amendment, 58 MINN. L. REV. 349, 377 (1974))); Daniel J. Solove, Digital Dossiers and
the Dissipation of Fourth Amendment Privacy, 75 S. CAL. L. REV. 1083, 1118 (2002) (describing
this as the “most important issue in Fourth Amendment analysis” since the Amendment “is
limited to activities that constitute ‘searches’ and ‘seizures’”).
November 2019] Fourth Amendment Textualism 235
complaining party’s “reasonable expectation of privacy.”
3
Scholarly com-
mentary on this doctrine kills more trees than termites. Yet despite all the
attention, the “reasonable expectation of privacy” test remains “the central
mystery of Fourth Amendment law”; “no one seems to know what makes an
expectation of privacy constitutionally ‘reasonable.’ ”
4
The Katz test’s indeterminacy was on display in the Supreme Court’s
latest Fourth Amendment “blockbuster.”
5
In Carpenter v. United States, po-
lice obtained records containing “cell-site location information (CSLI)” from
two wireless carriers.
6
The records revealed Timothy Carpenter’s location in
the vicinity of a series of robberies in downtown Detroit.
7
Precedent suggest-
ed this was not a “search.” The Supreme Court had previously held that there
was no reasonable expectation of privacy in (1) information obtained from
third parties
8
or (2) one’s location in public areas.
9
Highlighting “the unique
nature of cell phone location information,” however, the Court ruled (5–4)
that the government “invaded Carpenter’s reasonable expectation of priva-
cy.”
10
Consequently, “accessing seven days of CSLI constitutes a Fourth
Amendment search.”
11
No principle emerges from the opinion (seven
days?), or the laundry list of related scenarios where the Court cautioned that
its analysis might not apply.
12
Instead, the justices in the majority empha-
sized the need to “tread carefully” to “ensure that we do not ‘embarrass the
future.’ ”
13
The present gets no such reprieve.
3. See Carpenter v. United States, 138 S. Ct. 2206, 2227 (2018) (Kennedy, J., dissenting)
(explaining that the “reasonable expectations of privacy” test was “first announced in Katz v.
United States,” 389 U.S. 347 (1967)).
4. Orin S. Kerr, Four Models of Fourth Amendment Protection, 60 STA
N. L. REV. 503,
504 (2007); accord Carpenter, 138 S. Ct. at 2265 (Gorsuch, J., dissenting) (“[W]e still don’t even
know what [Katz’s] ‘reasonable expectation of privacy’ test is.”).
5. Adam Liptak, Justices Take Up Digital Privacy in Case with Roots in a Robbery, N.Y.
TIMES, Nov. 28, 2017, at A1.
6. 138 S. Ct. at 2211–12 (MetroPCS and Sprint).
7. Carpenter, 138 S. Ct. at 2213.
8. Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (“[A] person has no legitimate ex-
pectation of privacy in information he voluntarily turns over to third parties.”).
9. See United States v. Knotts, 460 U.S. 276, 281 (1983) (holding that a person “on pub-
lic thoroughfares has no reasonable expectation of privacy in his movements”).
10. Carpenter, 138 S. Ct. at 2219–20.
11. Id. at 2217 n.3.
12. The Court stressed that its opinion should not be read to encompass “real-time CSLI
or ‘tower dumps,’
” the “application of Smith [pen registers] and Miller [bank records],” “con-
ventional surveillance techniques and tools, such as security cameras,” “other business records
that might incidentally reveal location information,” and “other collection techniques involv-
ing foreign affairs or national security.” Id. at 2220; cf. Susan Freiwald & Stephen Wm. Smith,
The Carpenter Chronicle: A Near-Perfect Surveillance, 132 H
ARV. L. REV. 205, 222 (2018) (not-
ing that the “Carpenter Court fully embraced the normative approach of Katz” and acknowl-
edging “that the Katz test provides little to tether an inquiry”).
13. Carpenter, 138 S. Ct. at 2220 (quoting Nw. Airlines, Inc. v. Minnesota, 322 U.S. 292,
300 (1944)).
236 Michigan Law Review [Vol. 118:233
The irony of the Supreme Court’s modern “search” jurisprudence is that
the “reasonable expectation of privacy” test was supposed to avoid making “a
crazy quilt of the Fourth Amendment.”
14
And yet here we are: “[A] fourth
amendment with all of the character and consistency of a Rorschach blot.”
15
Extending the trendline into the future, there will be a line of cases for each
“unique” technology and product: cell phones, GPS tracking, facial recogni-
tion, license plate readers, Alexa, Fitbit, and on and on. Reasoning by decree
in a case or two each year, the Court will label applications of some technol-
ogies “searches,” leave others unrestricted as “non-searches,” and never
opine on the rest. For the vast majority of potential search scenarios (six days
of cell-site location information?), lower courts, citizens, and the police will
be left guessing about what the Constitution permits.
16
Despite its widely recognized indeterminacy, the “reasonable expecta-
tion of privacy” test endures. The best explanation for its longevity is a lack
of viable alternatives.
17
Judges and scholars rarely posit new formulations for
defining a Fourth Amendment “search.” Instead, reform proposals generally
accept the Katz formula as an “inevitable first step in the direction of admin-
istrability”
18
and seek to either cleanse the analysis of its perceived failings
19
or incorporate new factors.
20
Some scholars advocate making the Katz test
14. See Smith v. Maryland, 442 U.S. 735, 743–45 (1979).
15. Anthony G. Amsterdam, Perspectives on the Fourth Amendment, 58 M
INN. L. REV.
349, 375 (1974).
16. Carpenter, 138 S. Ct. at 2267 (Gorsuch, J., dissenting) (“[O]ur lower court colleagues
are left with two amorphous balancing tests, a series of weighty and incommensurable princi-
ples to consider in them, and a few illustrative examples that seem little more than the product
of judicial intuition.”); Evan Caminker, Location Tracking and Digital Data: Can Carpenter
Build a Stable Privacy Doctrine?, 2019 SUP
. CT. REV. (forthcoming 2019) (chronicling the many
difficult questions spawned by Carpenter).
17. See Sam Kamin, The Private Is Public: The Relevance of Private Actors in Defining the
Fourth Amendment, 46 B.C.
L. REV. 83, 138 (2004) (“No clear alternative to Katz’s conception
of the Fourth Amendment has yet emerged . . . .”); cf. Orin S. Kerr, The Case for the Third-
Party Doctrine, 107 MICH. L. REV. 561, 581 (2009) (noting that while criticism of third-party
doctrine is widespread, “[f]ew critics of the third-party doctrine have tried” to “develop some
alternative test, with the same ex ante clarity, for identifying when information is protected
under the Fourth Amendment”).
18. Amsterdam, supra note 15, at 404; see also Mary I. Coombs,
Shared Privacy and the
Fourth Amendment, or the Rights of Relationships, 75 CALIF. L. REV. 1593, 1615 (1987) (“The
indeterminacy of ‘expectations of privacy’ may be unavoidable if courts are to attempt to for-
mulate rules that accommodate the messiness of ordinary life.”).
19. See Sherry F. Colb, What Is a Search? Two Conceptual Flaws in Fourth Amendment
Doctrine and Some Hints of a Remedy, 55 S
TAN. L. REV. 119, 121 (2002) (criticizing cases fol-
lowing Katz for “steadily erod[ing] privacy in specific cases”); Scott E. Sundby, “Everyman”’s
Fourth Amendment: Privacy or Mutual Trust Between Government and Citizen?, 94 COLUM. L.
REV. 1751, 1753 (1994) (characterizing scholarly criticism as broadly concluding that “the
Court has not properly measured the individual’s expectations of privacy”).
20. See United States v. Maynard, 615 F.3d 544, 562–63 (D.C. Cir. 2010) (proposing a
“mosaic theory” that considers whether surveillance “reveals an intimate picture of the sub-
ject’s life that he expects no one to have”); Jeffrey Bellin, Crime-Severity Distinctions and the
Fourth Amendment: Reassessing Reasonableness in a Changing World, 97 I
OWA L. REV. 1, 45
November 2019] Fourth Amendment Textualism 237
even more pl iable so the Court can focu s on the central policy question,
“how best to regulate government information gathering.”
21
The few efforts
to dispense with Katz, like a recent proposal that ties searches and seizures to
violations of “positive law,”
22
promise as much complexity and uncertainty
as Katz itself.
23
In the end, these alternatives all suffer from similar flaws.
They are too complex, too subjective, too incomplete, and too far removed
from the Amendment’s text to improve on the status quo. There is little to be
gained by further tinkering with Katz or exchanging the “reasonable expec-
tation” formula for another shiny but impenetrable framework. Fortunately,
there is another option.
* * *
This Article proposes a simple alternative to the Supreme Court’s Fo urth
Amendment “search” jurisprudence: a return to the constitutional text. Step
one is to scrap Katz’s “reasonable expectation of privacy” test as an unmiti-
gated failure of constitutional interpretation, both incoherent and illegiti-
mate. Step two is to adopt a straightforward methodology, “Fourth
Amendment Textualism,” which derives a comprehensive “search” jurispru-
dence from three components of the Fourth Amendment’s text.
24
The pro-
(2011) (suggesting a “crime-severity variable” that could be incorporated into the “reasonable
expectation of privacy” test); Christopher Slobogin & Joseph E. Schumacher, Reasonable Ex-
pectations of Pri vacy and Autonomy in Fourth Amendment Cases: An Empirical Look at “Un-
derstandings Recognized and Permitted by Society,” 42 D
UKE L.J. 727, 735–36 (1993)
(suggesting that public opinion surveys could identify societally endorsed privacy expecta-
tions).
21. Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C.
L. REV. 1511, 1528 (2010);
see also Amsterdam, supra note 15, at 403 (suggesting that courts restrict police surveillance
activities to those consistent “with the aims of a free and open society”).
22. William Baude & James Y. Stern, The Positive Law Model of the Fourth Amendment,
129 H
ARV. L. REV. 1821, 1825 (2016) (“Instead of making Fourth Amendment protection
hinge on whether it is ‘reasonable’ to expect privacy in a given situation, a court should ask
whether government officials have engaged in an investigative act that would be unlawful for a
similarly situated private actor to perform.”); see also Sundby, supra note 19, at 1812 (seeking
to reorient Fourth Amendment analysis around “reciprocal government-citizen trust”).
23. For example, under a positive law approach, the question of whether tailing a sus-
pect constitutes a “search” would turn on things like whether the pursuing officers violated
local traffic ordinances, engaged in negligent driving, wore seatbelts, and (perhaps) had updat-
ed registration, insurance, and vehicle inspections. See Baude & Stern, supra note 22, at 1873
(“[T]he decisive question is whether the government has broken the law or relied on a gov-
ernmental exemption from the law in obtaining information.”). All of this would be difficult to
unravel, particularly in less regulated contexts (GPS tracking?), and has no intuitive connection
to the term “search.” Id. at 1850 (noting that the proposed test is “only as predictable as the
underlying positive law”).
24. The textualism referenced throughout this Article fits within the “new textualism”
approach to constitutional interpretation described by James Ryan. See James E. Ryan, Laying
Claim to the Constitution: The Promise of New Textualism, 97 V
A. L. REV. 1523, 1524 (2011)
(“The core principle of new textualism is that constitutional interpretation must start with a
determination, based on evidence from the text, structure, and enactment history, of what the
238 Michigan Law Review [Vol. 118:233
posal’s defining theme is simplicity. If the Supreme Court can muster the
will to cast aside the artificial complexity of the past fifty years, it will uncov-
er a straightforward textual command. All the Court needs is a dictionary, a
tou
ch
o
f
hi
st
or
y,
a
nd
s
om
e
co
mmon
s
en
se.
The proposal begins with the word “search.” The term at the center of
this morass is a common one, with an intuitive meaning supported by a clear
historical imperative. There is no indication in the historical record or the
pre-Katz case law that the Fourth Amendment’s specification of “searches”
as an event of constitutional interest was intended to be so inscrutable.
25
A
definition can come in handy for difficult cases, but will typically be unnec-
essary. A “search” is an examination of an object or space to uncover infor-
mation.
26
But you knew that already. The police search houses, pockets,
papers, and cars. They also search electronic documents and devices by read-
ing and scanning them for information. Importantly, while all searches seek
to uncover information, not all information gathering qualifies as a search.
Police do not “search” when they ask suspects or witnesses questions, ponder
unsolved cases, or rearrange data already in their possession.
27
In sum, a
“search” is a search.
28
It may be impossible to craft “a single test for when an
expectation of privacy is reasonable.”
29
But, as I hope to show, it is not nearly
so difficult to define the term “search.”
30
Next, a textualist approach reintroduces the often overlooked fact that
the Fourth Amendment does not target all “searches.” The only searches that
count for Fourth Amendment purposes are searches of “persons, houses, pa-
language in the Constitution actually means.”). Textualism may hold conservative overtones
for some readers. See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. REV. 621, 623
n.11, 624 (1990) (using “new textualism” to describe a mode of statutory interpretation, pio-
neered by Justice Scalia, with its roots in “ideological conservatism”). Ryan, however, views
“new textualism” as a way for “progressive academics” to engage “conservatives on their own
turf,” “showing how numerous constitutional provisions are more in line with contemporary
progressive values than conservative ones.” Ryan, supra at 1527. The textualism described by
Ryan is, at its core, as progressive or conservative as the text it interprets. And it is the domi-
nant mode of modern constitutional interpretation. See William Baude, Is Originalism Our
Law?, 115 C
OLUM. L. REV. 2349, 2352–53 (2015) (relating common positions of Justices Kagan
and Alito); Lawrence Lessig, Fidelity in Translation, 71 TEX. L. REV. 1165, 1182 (1993) (“Firm
within our legal culture is the conviction that if judges have any duty it is a duty of fidelity to
texts drafted by others, whether by Congress or the Framers . . . .”); Ryan, supra at 1552.
25. See infra Part I.
26. See infra Section II.A.
27. See infra note 166 and accompanying text for further discussion of examinations of
data in the possession of the government.
28. Cf. Arizona v. Hicks, 480 U.S. 321, 325 (1987) (“A search is a search, even if it hap-
pens to disclose nothing but the bottom of a turntable.”); Akhil Reed Amar, Fourth Amend-
ment First Principles, 107 H
ARV. L. REV. 757, 769 (1994) (“A search is a search, whether with
Raybans or x-rays.”).
29. Kerr, supra note 4, at 503, 507, 525; accord Ohm, supra note 1, para. 72 (expressing
skepticism that a “unified theory” in this context “can ever be found”).
30. See infra Section II.A.
November 2019] Fourth Amendment Textualism 239
pers, and effects.”
31
Why? It says so in the Fourth Amendment. The
Amendment’s enumeration of these “constitutionally protected areas”—a
legal phrase once in vogue but largely abandoned after Katz
32
—buttresses
the sense that Fourth Amendment “searches” target tangible objects or spac-
es and further clarifies the Amendment’s scope.
As a result of the “persons, houses, papers, and effects” limit, many in-
vestigative techniques that satisfy a commonsense definition of “search”
should not trigger Fourth Amendment protections. For example, restrictions
on public surveillance must be left to the legislature. Visual and audio sur-
veillance of public streets and parks might constitute a search, but not a
search of a “person,” “paper,” “house,” or “effect.” (As I will explain, there is
a subtle, but inescapable, textual distinction between searching a person and
searching for a person.)
33
Importantly for this analysis—and as explained in
detail below—intangible items like a person’s voice, image, or cell phone sig-
nals do not constitute “effects” under any plausible interpretation of the
term.
34
There is one more piece. A Fourth Amendment textualist can jettison all
of the baggage that comes along with Katz, including “third-party doctrine”:
the much-maligned rule that holds that “a person has no legitimate expecta-
tion of privacy in information he voluntarily turns over to third parties.”
35
But hold the applause. The textualist will sometimes reach results that track
third-party doctrine. This is not because anyone who interacts with humans
“assumes the risk” of betrayal, or any of the various strained rationales of-
fered by the Supreme Court.
36
Instead, a textualist would apply the textually
and historically supported principle that Fourth Amendment rights are per-
sonal.
37
Claimants can only obtain redress for a “search” of “t heir persons,
houses, papers, and effects.”
38
As a result, under a text-focused approach, a
murder suspect cannot in voke the Fourth Amendment in response to a
search of the victim’s papers.
39
Suspects can, however, invoke Fourth
Amendment protection against government access of th eir papers stored by
31. U.S. CONST. amend. IV.
32. See infra Part I. The phrase is making a partial comeback in the “trespassory search”
context. See Florida v. Jardines, 569 U.S. 1, 7 (2013); infra note 49.
33. See in fra Section II.A.
34. See infra Section II.C.
35. Smith v. Maryland, 442 U.S. 735, 743–44 (1979).
36. See Kerr, supra note 17, at 564 (noting that “even the U.S. Supreme Court has never
offered a clear argument in its favor”); Christopher Slobogin, Subpoenas and Privacy, 54
D
EPAUL L. REV. 805, 829 (2005) (describing assumption-of-risk rationale as “pure judicial fi-
at”).
37. See Rakas v. Illinois, 439 U.S. 128, 133–34 (1978) (“Fourth Amendment rights are
personal rights which, like some other constitutional rights, may not be vicariously asserted.”
(quoting Alderman v. United States, 394 U.S. 165, 174 (1969))); infra Section II.D.
38. U.S.
CONST. amend. IV.
39. This is also true under current Fourth Amendment “standing” doctrine. See infra
Section II.D.
240 Michigan Law Review [Vol. 118:233
others, such as those in “the cloud.”
40
This simple, textually grounded logic
solves one of the toughest riddles spawned by the Katz test: Why doesn’t the
“burglar plying his trade in a summer cabin during the off season . . . have a
thoroughly justified subjective expectation of privacy”?
41
The Supreme
Court’s answer is that the burglar’s admittedly reasonable expectation “is not
one which the law recognizes as ‘legitimate.’ ”
42
A textualist need not engage
in this vacuous wordplay. Police engage in a “search” of a house when they
enter the summer cabin to detect the off-season burglar. The burglar has no
redress because it is not a search of the burglar’s house.
That’s basically it: a comprehensive alternative to Fourth Amendment
“search” jurisprudence in a couple paragraphs. A Fourth Amendment textu-
alist need only isolate the challenged government conduct and discern if
there was a “search”—as that term is commonly understood—of the com-
plaining party’s (“their”) “person,” “house,” “papers,” or “effects.” This
straightforward analysis replaces both prongs of Katz’s “reasonable expecta-
tion of privacy” test; the supplementary “trespassory search” test introduced
by the Supreme Court in 2012
43
; all of third-party doctrine; Fourth Amend-
ment “standing”; and five decades of meandering musings in the cases apply-
ing Katz.
44
Applying a textual analysis, the easy questions remain easy. A pat down
of a suspect is a search of his person.
45
Entry into the defendant’s apartment
is a search of her house.
46
Hard questions get simplified. In 2013, the Court
sputtered when it addressed the introduction of a drug-sniffing police dog
onto a residential property.
47
Unable to reach consensus under Katz, the jus-
tices applied a new, supplemental “trespassory search” test to find an an-
swer.
48
A textualist approach simplifies the case.
49
Having a trained dog sniff
40. See David A. Couillard, Note, Defogging the Cloud: Applying Fourth Amendment
Principles to Evolving Privacy Expectations in Cloud Computing, 93 MINN. L. REV. 2205, 2216
(2009) (“An external cloud platform is storage or software access that is essentially rented from
(or outsourced to) a remote public cloud service provider, such as Amazon or Google.”); see
also infra Section II.D.
41. Rakas, 439 U.S. at 143–44 n.12.
42. Id.
43. See United States v. Jones, 565 U.S. 400, 412 (2012).
44. See infra Part II.
45. Terry v. Ohio, 392 U.S. 1, 16 (1968) (“[I]t is nothing less than sheer torture of the
English language to suggest that a careful exploration of the outer surfaces of a person’s cloth-
ing all over his or her body in an attempt to find weapons is not a ‘search.’
”).
46. Cf. Weeks v. United States, 232 U.S. 383, 393 (1914) (finding Fourth Amendment
violation in search of defendant’s house).
47. See Florida v. Jardines, 569 U.S. 1, 3, 7 (2013).
48. See id. at 7, 11.
49. While still in its infancy, the “trespassory search” test first announced in Jones, 565
U.S. 400, 406–09 (2012), resonates with the instant proposal by targeting police efforts to ob-
tain information from textually delineated areas. See Jardines, 569 U.S. at 5 (“When ‘the Gov-
ernment obtains information by physically intruding’ on persons, houses, papers, or effects, ‘a
“search” within the original meaning of the Fourth Amendment’ has ‘undoubtedly occurred.’
”
November 2019] Fourth Amendment Textualism 241
around the property for narcotics is a Fourth Amendment search. The police
examined a tangible space to uncover information (a “search”); the space
(the curtilage) is protected by the Fourth Amendment as part of the home;
50
and it was the suspect’s (“their”) curtilage.
A text-based approach easily solves one of the notoriously difficult
Fourth Amendment cases: the “use of a thermal-imaging device aimed at a
private home from a public street.”
51
The Court’s 5–4 answer in Kyllo v.
United States (“yes, it’s a search”) rested on a host of reasons, includ ing that
any other conclusion “would leave homeowners at the mercy of advancing
technology”
52
and that the “technology in question is not in general public
use.”
53
Fourth Amendment Textualism gives a better answer: agents’ use of a
thermal-imaging device to uncover information about what was occurring
inside a residence constitutes a search (an examination of an object or space
to uncover information) of a house.
Focusing on the text rather than reasonable expectations of privacy
clears up other incoherent areas of Fourth Amendment jurisprudence. A
longstanding line of cases holds that when police direct drug-sniffing dogs to
detect narcotics in luggage or vehicles, there is no “search.”
54
This outgrowth
of the “reasonable expectation of privacy” test fails textual analysis. There is
most certainly a Fourth Amendment search: an examination of a protected
item (“effects”) to uncover information. Any determination that warrantless
dog sniffs are constitutional should hinge on “reasonableness” (a separate
component of the Fourth Amendment), not strained redefinitions of the
term “search.”
As attractive as this textualist approach may sound, change will not be
easy. Resistance can be expected on two fronts. First, many will doubt that a
straightforward interpretation of the words in the Fourth Amendment can
take the place of the intricate framework of present-day “search” jurispru-
dence. This belief probably explains the strangely radical feel of a proposal to
interpret the Fourth Amendment according to the commonly understood
(quoting Jones, 565 U.S. at 406–07 n.3)). The test parts ways with the proposal, however, by
depending on an “unlicensed physical intrusion” (rather than a search) to trigger a “search”
finding, and in its status as a complement to, rather than a replacement for, the Katz test. Id. at
7, 11. For example, under a textualist approach, directing a drug-sniffing dog to sniff a house
from the sidewalk would be a “search” of the house. It would not constitute a “trespassory
search.” Id. at 25–26 (Alito, J., dissenting).
50. See in fra Section II.B (discussing curtilage).
51. Kyllo v. United States, 533 U.S. 27, 29 (2001).
52. Id. at 29, 35.
53. Id. at 34.
54. See Illinois v. Caballes, 543 U.S. 405, 408–09 (2005); United States v. Place, 462 U.S.
696, 707 (1983); see also United States v. Jacobsen, 466 U.S. 109, 123 (1984) (“A chemical test
that merely discloses whether or not a particular substance is cocaine does not compromise
any legitimate interest in privacy.”).
242 Michigan Law Review [Vol. 118:233
meaning of its terms.
55
Legendary Fourth Amendment scholar Anthony
Amsterdam summed up this sentiment in 1974: “As applied to law enforce-
ment activities, the terms ‘searches,’ ‘seizures,’ ‘persons,’ ‘houses,’ ‘papers’
and ‘effects’ could not be more capacious or less enlightening.”
56
Obviously,
I disagree. As I intend to show, these terms are as clear as any in the English
language. It is their modern interpreters who bear all the blame.
Second, many commentators and some justices will fear that a textualist
approach will not sufficiently protect privacy rights in an age of technologi-
cal change.
57
One answer is that desired policy outcomes should not drive
the interpretation of straightforward constitutional terms.
58
Any principled
55. Others have noted that the Court’s “reasonable expectation of privacy” test over-
complicates the in quiry, with negative consequences. But the resulting proposals include simi-
larly soaring “search” definitions, and/or fail to connect the definition with other textually
required aspects of the Amendment. See, e.g., Morgan v. Fairfield County, 903 F.3d 553, 568
(6th Cir. 2018) (Thapar, J., concurring in part and dissenting in part) (“[O]fficers conduct a
search when they engage in a purposeful, investigative act.”); State v. Allen, 241 P.3d 1045,
1079 (Mont. 2010) (Nelson, J., concurring) (proposing that “a search occurs where a govern-
ment agent looks over or through, explores, examines, inspects, or otherwise engages in con-
duct or an activity designed to find, extract, acquire, or recover evidence”); D
AVID GRAY, THE
FOURTH AMENDMENT IN AN AGE OF SURVEILLANCE 159–60 (2017) (arguing for a com-
monsense understanding of “search” that includes “making inquiry” or “trying to find,” cou-
pled with an additional inquiry into “whether that act of searching or seizing threatens the
right of the people to be secure against unreasonable searches and seizures”); Amar, supra note
28, at 757, 769, 811 (“[A] great many government actions can be properly understood as
‘searches’ or ‘seizures,’ especially when we remember that a person’s ‘effects’ may be intangi-
ble—as the landmark Katz case teaches us.”); Clark D. Cunningham, A Linguistic Analysis of
the Meanings of “Search” in the Fourth Amendment: A Search for Common Sense, 73 I
OWA L.
REV. 541, 608 (1988) (urging a “semantically sophisticated reworking of ‘search’ ” that allows
courts to “use common sense meanings of ‘search’ as” the “raw material for a newly refined
and powerful meaning of ‘search’”). Justice Thomas recently pointed out the disconnect be-
tween the term “search” and Katz’s definition in calling for the Court to “reconsider” the test,
but does not propose an alternative. See Carpenter v. United States, 138 S. Ct. 2206, 2238, 2246
(2018) (Thomas, J., dissenting).
56. Amsterdam, supra note 15, at 395–96; see also Solove, supra note 21, at 1517 (em-
phasizing that the “Fourth Amendment was written centuries ago, long before modern tech-
nology dramatically altered the ways the government can gather information”).
57. See, e.g., United States v. Jones, 565 U.S. 400, 416–17 (2012) (Sotomayor, J., concur-
ring) (suggesting that new technologies require revisiting the doctrine in light of “the Fourth
Amendment’s goal to curb arbitrary exercises of police power and prevent ‘a too permeating
police surveillance’
” (quoting United States v. Di Re, 332 U.S. 581, 595 (1948))); Thomas K.
Clancy, What Does the Fourth Amendment Protect: Property, Privacy, or Security?, 33 WAKE
FOREST L. REV. 307, 364 (1998) (“A normative liberal approach is particularly necessary in to-
day’s world, where technology threatens to make all the details of one’s life detectable.”); Kerr,
supra note 17, at 573 (discussing critique of third-party doctrine based on fears of permitting
too much government intrusion).
58. See Ryan, supra note 24, at 1539 (“Where the text is clear, no one suggests that judg-
es, legislators, or executive branch officials are free to ignore it because they disagree with what
it requires or because they believe it is outdated.”); Henry P. Monaghan, Our Perfect Constitu-
tion, 56 N.Y.U.
L. REV. 353, 363 (1981) (“Even if one assumes that some constitutional provi-
sions were intended to be molded to contemporary needs, these provisions are plainly
bounded by their language.”); supra note 24.
November 2019] Fourth Amendment Textualism 243
application of a timeworn textual command will lead to results that com-
mentators might not ch oose as a policy matter. That is how constitutional
rules work—if you follow them. And legislatures can provide additional pro-
tec
ti
on
s
wh
er
e
ap
p
ro
pri
at
e.
A second response to fears that textualism will unduly shrink privacy
protections is that there is little cause to celebrate the privacy-protective ben-
efits of the status quo. While Katz’s “reasonable expectation of privacy” test
always holds the promise of a desirable outcome, it often disappoints.
59
Most
typically, the test’s “famous malleability” benefits the government, not crim-
inal defendants.
60
In contrast to the Court’s current approach, Fourth
Amendment Textualism ties the hands of the justices, both those who are
friendly to privacy and those who are fr iendly to police. As a result, all
“sides” of the privacy-versus-security debate
61
will find benefits in an analy-
sis tethered to the constitutional text. And even if it sometimes leads away
from preferred outcomes, Fourth Amendment Textualism beats an inherent-
ly subjective approach of questionable legitimacy that turns on the shifting
policy preferences of an increasingly politicized Supreme Court.
62
This is
particularly true in a political space where legislators and state courts can,
and do, enhance protections when the Court comes up short.
63
59. See Colb, supra note 19, at 186 (criticizing the Supreme Court’s post-Katz search
doctrine as placing “much of what government officials do to investigate private citizens . . .
outside the scope of the Fourth Amendment’s protection”); Solove, supra note 21, at 1519
(“[T]he test has failed to live up to aspirations.”); Sundby, supra note 19, at 1771 (“The Fourth
Amendment as a privacy-focused doctrine has not fared well with the changing times of an
increasingly non-private world and a judicial reluctance to expand individual rights.”).
60. See Ohm, supra note 1, paras. 52–53; see also G
RAY, supra note 55, at 159 (contend-
ing that the Katz test shrinks privacy protections by departing from a broader intuitive inter-
pretation); Colb, supra note 19, at 120 (noting numerous scholars observed that “the decisions
that followed Katz very narrowly defined the scope of protected privacy”); Sundby, supra note
19, at 1763 (arguing that Katz, “over the long term, resulted in an overall decline in the
Amendment’s protections”).
61. In addition to the familiar pro-privacy and pro-police sides, there is another side to
the debate that emphasizes not the perils of new technology for those subject to government
scrutiny, but its promise. See, e.g., I. Bennett Capers, Race, Policing, and Technology, 95 N.C.
L.
REV. 1241, 1271 (2017) (emphasizing “the way technology can deracialize and de-bias polic-
ing”).
62. See Clancy, supra note 57, at 340 (“[W]hile a liberal Court substituted privacy in lieu
of property analysis to expand protected interests, a conservative Court has employed privacy
analysis as a vehicle to restrict Fourth Amendment protections.”).
63. For example, after the Supreme Court declined to extend Fourth Amendment pro-
tection to wiretaps, Congress enacted a statute governing federal and state wiretaps. See infra
notes 100–101. For a summary of other congressional privacy legislation, see Freiwald &
Smith, supra note 12, at 208–11 (describing provisions of the Electronic Communication Pri-
vacy Act, the Stored Communications Act, and the Tracking Device Statute). States, too, man-
date greater protections than the federal constitution requires. See, e.g., N.H.
CONST. art. 2-b
(“An individual’s right to live free from governmental intrusion in private or personal infor-
mation is natural, essential, and inherent.”); People v. De Bour, 352 N.E.2d 562, 566–67 (1976)
(mandating a series of requirements for police–citizen encounters under New York state law).
244 Michigan Law Review [Vol. 118:233
Not only is there a viable text-based alternative to today’s broken-down
“search” jurisprudence, there is a model for the required jurisprudential
shift. Current Fourth Amendment “search” jurisprudence looks remarkably
li
ke
t
he
S
up
re
me
Cou
rt
’s
p
re
-2004
tr
ea
tme
nt
o
f
th
e
Six
th
A
men
dm
en
t
ri
gh
t
to confront adverse witnesses.
64
Between 1980 and 2004, the Supreme Court
applied a line of cases based on Ohio v. Roberts
65
that allowed prosecutors to
introduce out-of-court statements from absent witnesses, so long as those
statements were reliable.
66
This approach, the Court claimed, enforced the
confrontation right’s underlying “purpose to augment accuracy in the fact-
finding process.”
67
Over the years, the justices and lower courts employed a
variety of shifting tests to assess reliability, resulting in inconsistency and a
free hand for prosecutors to override defendants’ confrontation rights.
68
Af-
ter twenty-five years, the Supreme Court finally gave up. It recognized that
its precedent created a reliability test that was “amorphous, if not entirely
subjective”
69
and had “strayed far from the constitutional text and history.”
70
Sound familiar? To take its place, an eight-justice majority (including three
members of the current Court) crafted a new test derived from the Six th
Amendment text.
71
The Court’s Fourth Amendment “search” jurisprudence
seems primed for the same evolution. This Article seeks to initiate that pro-
cess.
The Article proceeds in three parts. Part I explains how we came to the
present predicament. The Court’s “search” jurisprudence follows a reasona-
bly stable trajectory until Katz. Post-Katz, the doctrine’s foundation on “rea-
sonable expectations of privacy” causes the case law to spin out of control.
Part II sets out the proposed textualist approach to Fourth Amendment
64. U.S. CONST. amend. VI.
65. 448 U.S. 56 (1980).
66. See Crawford v. Washington, 541 U.S. 36, 42 (2004) (“Roberts says that an unavaila-
ble witness’s out-of-court statement may be admitted so long as it has adequate indicia of reli-
ability . . . .”); Roberts, 448 U.S. at 65 (setting out “a general approach” to the confrontation
right).
67. Roberts, 448 U.S. at 65.
68. Crawford, 541 U.S. at 63 (summarizing these problems); see also Ohio v. Clark, 135
S. Ct. 2173, 2185 (2015) (Scalia, J., concurring) (describing the pre-Crawford period as the
“halcyon era for prosecutors”).
69. Crawford, 541 U.S. at 63.
70. Stephanos Bibas, Essay, Originalism and Formalism in Criminal Procedure: The Tri-
umph of Justice Scalia, the Unlikely Friend of Criminal Defendants?, 94 G
EO. L.J. 183, 190
(2005); see Crawford, 541 U.S. at 63 (identifying as the “unpardonable vice of the Roberts test”
“its demonstrated capacity to admit core testimonial statements that the Confrontation Clause
plainly meant to exclude”).
71. Crawford, 541 U.S. at 51 (relying on the text and definitions drawn from 2 NOA
H
WEBSTER, AN AMERICAN DICTIONARY OF THE ENGLISH LANGUAGE (1828) [hereinafter
WEBSTER’S], to craft a new framework). The Court later fudged the new Confrontation Clause
framework a bit, sowing the seeds for jurisprudential slippage. But that is the story for another
article. See Jeffrey Bellin, The Incredible Shrinking Confrontation Clause, 92 B.U. L. REV. 1865,
1871 (2012) (praising and critiquing the Court’s modern Confrontation Clause jurisprudence).
November 2019] Fourth Amendment Textualism 245
“search” analysis. This Part defines the operative terms and principles and
illustrates how a textualist approach cleanly identifies Fourth Amendment
“searches.” Part III applies Fourth Amendment Textualism to a broad varie-
ty
of
s
ce
na
rio
s.
T
he
pr
ev
ail
ing
wis
dom
is
t
ha
t
te
ch
no
lo
gic
al
a
dv
ance
s
m
ake
straightforward Fourth Amendment “search” analysis impossible. Part III
shows that this wisdom is unsound. Far from “embarrassing the future,”
Fourth Amendment Textualism (1) produces straightforward answers in in-
dividual cases; and (2) generates a predictable, sensible, and legitimate
Fourth Amendment “search” jurisprudence far superior to the status quo.
I. A
SHORT HISTORY OF THE CURRENT PREDICAMENT
There are terms in the Constitution that are hard to define: “due pro-
cess,”
72
“cruel and unusual,”
73
“equal protection,”
74
“unreasonable.”
75
The
list is long. “Search” is not on it. The word “search” is neither vague nor a le-
gal term of art with a technical meaning. It was in common use at the time of
the Framing, and meant then what it means now.
76
Until the Court decided Katz v. United States
77
in 1967, there were few
indications that applying the term “search” required sophisticated legal anal-
ysis. Courts casually considered whether police conduct constituted a search
in the colloquial sense—if so, the police typically needed a warrant. This Part
summarizes the early jurisprudence (Section A), the Court’s sharp turn away
from the text in Katz (Section B), and the resulting distortions in Fourth
Amendment “search” jurisprudence (Section C).
A. The Pre-Katz Era’s Casual Textualism
Early Fourth Amendment cases typically did not dig into the privacy
implications of police conduct. Instead, they sought to root out “the misuse
of governmental power of compulsion.”
78
This focus on government abuse
follows from the text and history of the Fourth Amendment.
79
The Amend-
ment prohibits unreasonable “searches” and “seizures.” It does not mention
“privacy.”
80
Unhindered by the task of assessing reasonable expectations of privacy,
pre-Katz disputes about Fourth Amendment searches turned on characteriz-
ing the government conduct in question. The courts had no trouble labeling
72. U.S. CONST. amends. V, XIV.
73. U.S.
CONST. amend. VIII.
74. U.S.
CONST. amend. XIV.
75. U.S.
CONST. amend. IV.
76. See in fra Section II.A; infra note 142.
77. 389 U.S. 347 (1967).
78. Olmstead v. United States, 277 U.S. 438, 463 (1928) (highlighting “the misuse of
governmental power of compulsion” as the core of the Fourth Amendment principle).
79. See infra Part II for further discussion of the history.
80. U.S.
CONST. amend. IV.
246 Michigan Law Review [Vol. 118:233
intrusions into the home and other properties.
81
Government efforts “to ob-
tain entrance to a man’s house or office by force” and “seize his private pa-
pers” constituted paradigmatic Fourth Amendment “searches.”
82
A “search”
also occurred when an agent achieved the same end “by stealth,” gathering
up the defendant’s papers after sneaking onto his property,
83
or obtaining
entry after coming upon a spare key.
84
The only pre-telephone difficulty in the case law concerned indirect ap-
proaches to obtaining evidence, such as subpoenas. Despite some early re-
sistance, the justices ultimately coalesced around the idea that a subpoena
commanding a recipient to produce “private papers” constitutes a “search”
under the Fourth Amendment.
85
This debate produced the most rhetorically
ambitious of the early Fourth Amendment cases, Boyd v. United States.
86
Later justices and commentators commend Boyd for rejecting “a narrowly
literal conception of ‘search and seizure.’ ”
87
But, in truth, the opinion re-
mained faithful to the text, sensibly equat ing “a compulsory production of a
man’s private papers” with a “search and seizure” of those same papers.
88
The idea underlying the subpoena cases, which remains sound today, is
that the government cannot avoid the Fourth Amendment’s restrictions by
commandeering a private citizen to search on its behalf. If the police order a
81. See, e.g., Agnello v. United States, 269 U.S. 20, 32 (1925) (“The search of a private
dwelling without a warrant is in itself unreasonable and abhorrent to our laws.”); Amos v.
United States, 255 U.S. 313, 316 (1921) (highlighting the “unconstitutional character of the
seizure” where police entered defendant’s home without a warrant); Gouled v. United States,
255 U.S. 298, 305 (1921) (holding it unconstitutional to remove papers from defendant’s
“house or office” without a warrant).
82. Gouled, 255 U.S. at 305; Adams v. New York, 192 U.S. 585, 598 (1904) (highlighting
the purpose of the Fourth Amendment “to punish wrongful invasion of the home of the citizen
or the unwarranted seizure of his papers and property”).
83. Gouled, 255 U.S. at 305.
84. Weeks v. United States, 232 U.S. 383, 386 (1914) (finding a Fourth Amendment vio-
lation where police searched defendant’s house after “being told by a neighbor where the key
was kept, found it and entered the house”).
85. Compare Boyd v. United States, 116 U.S. 616, 630 (1886) (extending the Constitu-
tion’s protection to “any forcible and compulsory extortion of a man’s . . . private papers”),
with id. at 639–41 (Miller, J., concurring) (arguing that there “is in fact no search and no sei-
zure” generated by “the mere service of a notice to produce a paper”). For an endorsement of
the Boyd Court’s conclusion, see Olmstead v. United States, 277 U.S. 438, 460 (1928).
86. 116 U.S. 616.
87. Lopez v. United States, 373 U.S. 427, 456 (1963) (Brennan, J., dissenting); Boyd, 116
U.S. at 635 (rejecting a “close and literal construction” of the Fourth and Fifth Amendments in
favor of “the rule that constitutional provisions for the security of person and property should
be liberally construed”); Clancy, supra note 57, at 312 (suggesting that Boyd represents a “liber-
al construction” of the Fourth Amendment as opposed to “a literal one”).
88. Boyd, 116 U.S. at 622 (“[A] compulsory production of a man’s private papers . . . is
within the scope of the Fourth Amendment . . . in all cases in which a search and seizure would
be . . . .”); accord Olmstead, 277 U.S. at 460 (“It was certainly no straining of the language to
construe the search and seizure under the Fourth Amendment to include such official proce-
dure.”).
November 2019] Fourth Amendment Textualism 247
neighbor to go into a suspect’s house and ferret out the suspect’s papers, it
would constitute a “search” (and “seizure”). The result should be no different
when the police direct their order at the suspect.
89
These early cases, although at times conclusory in their reasoning, rec-
ognized that Fourth Amendment protections only reached searches of the
items enumerated in its text. As the Supreme Court emphasized in 1928:
“The Amendment itself shows that the search is to be of material things—the
person, the house, his papers or his effects.”
90
This helped the Court identify
a Fourth Amendment vio lation when the government opened sealed letters
entrusted to the United States Postal Service.
91
The Court’s analysis contains
no hand-wringing about assumptions of risk, entrustment to third parties
(the government no less!), or privacy expectations.
92
The reasoning is simple:
“The constitutional guaranty of the right of the people to be secure in their
papers against unreasonable searches and seizures extends to their papers,
thus closed against inspection, wherever they may be.”
93
The first signs of a coming storm appeared as the Supreme Court’s em-
phasis on the Fourth Amendment’s text generated a distinction between the
government’s ability to in tercept written documents and oral conversations.
The former were “papers”; the latter were not. This dichotomy led to the
now-maligned principle that the interception of oral conversations outside
any “house” or “effect” did not constitute a “search.”
94
The principle featured
most prominently in Olmstead v. United States, where federal Prohibition
agents intercepted the defendant’s private conversations by tapp ing into
phone lines from a public street and an office building basement.
95
The
Olmstead majority found no “search.”
96
The Court reasoned that any other
conclusion would strain “the possible practical meaning of houses, persons,
papers, and effects” and “apply the words search and seizure” to “forbid
89. Cf. Okla. Press Publ’g Co. v. Walling, 327 U.S. 186, 202 n.28 (1946) (describing cases
as “ ‘figurative’ or ‘constructive’ search” cases).
90. Olmstead, 277 U.S. at 464.
91. Id.
92. See id. (“The letter is a paper, an effect, and in the custody of a Government that for-
bids carriage, except under its protection.”); Weeks v. United States, 232 U.S. 383, 390 (1914)
(explaining that the Fourth Amendment protects “letters and sealed packages in the mail”); Ex
parte Jackson, 96 U.S. 727, 733 (1877) (explaining that the Constitution’s protections extend to
a person’s papers “wherever they may be”).
93. Ex pa rte Jackson, 96 U.S. at 733.
94. See United States v. White, 401 U.S. 745, 748 (1971) (explaining that “[u]ntil Katz v.
United States, neither wiretapping nor electronic eavesdropping violated a defendant’s Fourth
Amendment rights ‘unless there has been . . . an actual physical invasion of his house “or curti-
lage”
’ ” (quoting Olmstead, 277 U.S. at 466)); Coombs, supra note 18, at 1608 (describing the
pre-Katz distinctions as among the “patent absurdities in the case law”).
95. Olmstead, 277 U.S. at 456–57; accord Berger v. New York, 388 U.S. 41, 50 (1967)
(describing Olmstead as the Court’s “first wiretap case”).
96. Olmstead, 277 U.S. at 466 (holding that “the wire tapping here disclosed did not
amount to a search or seizure within the meaning of the Fourth Amendment”).
248 Michigan Law Review [Vol. 118:233
hearing or sight.”
97
Privacy advocates decried the result,
98
but it followed a
familiar pattern: the Court measured the challenged conduct against the tex-
tual ingredients of the Fourth Amendment. The dissenters, predictably, criti-
cized the majority’s “unduly literal construction” of the Fourth
Amendment.
99
After Olmstead, pr ivacy advocates obtained recourse from the legisla-
ture.
100
Congress crafted a comprehensive statutory regime restricting wire-
taps to fill the clear void left by the Supreme Court’s interpretation of the
Fourth Amendment.
101
All in all, pre-Katz “search” doctrine is a success sto-
ry built on narrow rulings and sensibl e legislative responses. These cases
provide an initial answer to the objection that a simplified “search” test is not
viable. It worked for two hundred years.
B. Katz and the “Reasonable Expectation of Privacy” Test
Katz changed everything. Dissatisfied with the formalistic tenor of its
doctrine, the Supreme Court in Katz v. United States changed both the tone
of its Fourth Amendment “search” decisions and the method of analysis. The
consequences reverberate today.
The FBI agents in Katz knew their case law.
102
They listened in on
Charles Katz’s half of a private phone call using a technique analogous to the
“detectaphone” the Court had approved in an earlier case, Goldman v. Unit-
ed States.
103
Specifically, the officers placed an electronic recording device on
top of a public phone booth Katz frequented.
104
By not intruding onto the
“person, papers, houses, or effects” of the suspect, the officers (who had no
97. Id. at 465.
98. See Solove, supra note 2, at 1131 (“At the time of Olmstead, many viewed wiretap-
ping with great unease.”).
99. Olmstead, 277 U.S. at 476 (Brandeis, J., dissenting); see also id. at 488 (Butler, J., dis-
senting) (critiquing the majority for following the “literal meaning of the words” rather than
the “principles” underlying them).
100. See Berger, 388 U.S. at 51 (“Congress soon thereafter, and some say in answer to
Olmstead, specifically prohibited the interception without authorization and the divulging or
publishing of the contents of telephonic communications.”).
101. See Omnibus Crime Control and Safe Streets Act of 1968, § 802, 18 U.S.C. §§ 2510–
2520 (2012) (governing wiretaps); United States v. Marion, 535 F.2d 697, 702 (2d Cir. 1976)
(emphasizing that federal statute places restrictions even on state wiretaps).
102. See Oral Argument at 1:02, 50:31, Katz v. United States, 389 U.S. 347 (1967) (No.
35), https://www.oyez.org/cases/1967/35 (reporting Katz’s attorney’s acknowledgement that
the agents “did their homework” and the government attorney’s explanation that agents did
not seek a warrant because of their “reliance on Goldman”).
103. 316 U.S. 129, 135 (1942) (rejecting contention that agents triggered the Fourth
Amendment when they attached a “detectaphone” to a wall to overhear conversations next
door); see Katz, 389 U.S. at 348 (noting that FBI agents listened to “petitioner’s end of tele-
phone conversations”).
104. Katz, 389 U.S. at 348.
November 2019] Fourth Amendment Textualism 249
warrant) sought to remain on the “no-search” side of the constitutional di-
vide.
105
Unfortunately for the officers, the Supreme Court in Katz disavowed its
precedents, concluding that “the underpinnings of Olmstead and Goldman
have been so eroded by our subsequent decisions that the ‘trespass’ doctrine
there enunciated can no longer be regarded as controlling.”
106
Applying a
new kind of Fourth Amendment analysis, the majority concluded, “The
Government’s activities in electronically listening to and recording the peti-
tioner’s words violated the privacy upon which he justifiably relied while us-
ing the telephone booth and thus constituted a ‘search and seizure’ within
the meaning of the Fourth Amendment.”
107
The Katz majority made no effort to connect this new analysis to the
constitutional text. In fact, the opinion criticizes the parties for directing
their arguments to whether the phone booth was a “constitutionally protect-
ed area”—and never reveals whether the FBI searched Katz’s “person,” “pa-
pers,” “houses,” or “effects.”
108
The majority avoided this question by
famously proclaiming that “the Fourth Amendment protects people, not
places”: Katz, having “shut[] the door be hind him, and pa[id] the toll that
permits him to place a call,” was entitled to his privacy.
109
Sensing that this seismic doctrinal shift required further explication, Jus-
tice Harlan added a short concurrence that summarized his understanding
of the Court’s new approach. Harlan explained that the majority had crafted
a “twofold requirement” to identify a Fourth Amendment “search”: “first
that a person have exhibited an actual (subjective) expectation of privacy
and, second, that the expectation be one that society is prepared to recogn ize
as ‘reasonable.’
”
110
The test became known as the “reasonable expectation of
privacy” test, reflecting that, while the test nominally has two prongs, the
second prong—whether the person’s expectation of privacy was reasona-
ble—ultimately divides “searches” from non-searches.
111
It is worth pausing briefly to consider the origins of the Katz test. While
strangely overlooked in contemporary discourse, the test’s bizarre begin-
nings foreshadow the maddening subjectivity that would come to define
“search” doctrine. Commentators typically credit Justice Harlan for spinning
105. See Goldman, 316 U.S. at 135 (rejecting challenge to analogous procedure).
106. Katz, 389 U.S. at 353. Contrary to the Court’s characterization, its prior decisions
“never adopted a trespass test.” Orin S. Kerr, The Curious History of Fourth Amendment
Searches, 2012 SUP
. CT. REV. 67, 89.
107. Katz, 389 U.S. at 353.
108. Id. at 351.
109. Id. at 351–52.
110. Id. at 361 (Harlan, J., concurring).
111. See Orin S. Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations,
82 U.
CHI. L. REV. 113, 113–14 (2015) (“A majority of courts that apply Katz do not even men-
tion the subjective inquiry; when it is mentioned, it is usually not applied; and when it is ap-
plied, it makes no difference to outcomes.”).
250 Michigan Law Review [Vol. 118:233
the “reasonable expectation of privacy” test out of “thin air.”
112
But in a re-
cent law review article, Katz’s attorney claims credit, explaining that he
pieced together the test just in time to unveil it at oral argument.
113
Justice
Thomas highlighted this inglorious pedigree to belittle the Katz test in his
Carpenter dissent: “[T]he parties did not discuss it in their briefs. The test
appears to have been presented for the first time at oral argument by one of
the defendant’s lawyers.”
114
It’s a good story. But the truth is even better. The
“reasonable expectations of privacy” test is debated in the briefs in Katz, just
not how you would expect. It first appears in the government’s brief, which
states, “The rights of privacy reflected in the guarantees of the Fourth
Amendment must be measured in terms of the reasonable expectations of a
person in a given location that he is free from scrutiny.”
115
Katz’s reply brief highlights this quote, but only to criticize it as “misin-
terpret[ing] the purport of the Fourth Amendment.”
116
At oral argument the
parties swapped positions. Katz’s attorney embraced something like the
above-quoted test, repackaging it as the “tort reasonableness test” and focus-
ing on whether an outside observer would think an intercepted statement
had be en made in confidence.
117
That’s close to the Katz test, but Harlan’s
112. Peter Winn, Katz and the Origins of the “Reasonable Expectation of Privacy” Test, 40
MCGEORGE L. REV. 1, 9 (2009) (“Until recently, most observers treated the test as if Harlan
made it up out of thin air.”); see Paul A. Clark, Do Warrantless Breathalyzer Tests Violate the
Fourth Amendment?, 44 N.M. L. REV. 89, 90 n.8 (2014) (stating that Justice Harlan “first articu-
lated the ‘reasonable expectation of privacy’ standard”); Paul Ohm, The Fourth Amendment in
a World Without Privacy, 81 MISS. L.J. 1309, 1333 (2012) (stating that Justice Harlan “invented
the reasonable expectation of privacy test in his Katz concurrence”).
113. Harvey A. Schneider, Katz v. United States: The Untold Story, 40 M
CGEORGE L. REV.
13, 19 (2009) (“Then it hit me. We (both the Court and the attorneys) had it all wrong. . . .
[T]he test was whether a reasonable person (TARM) could have expected his communication
to be private.”); Winn, supra note 112, at 9 (“The test is not mentioned in the record of the
lower courts, or in the pleadings and briefs filed in the Supreme Court. . . . [T]he idea came
from the lawyers—specifically one lawyer—Harvey (now Judge) Schneider who, with Burton
Marks, represented the petitioner, Charles Katz.”).
114. Carpenter v. United States, 138 S. Ct. 2206, 2237 (2018) (Thomas, J., dissenting)
(“The lawyer, a recent law-school graduate, apparently had an ‘[e]piphany’ while preparing for
oral argument.” (alteration in original) (quoting Schneider, supra note 113, at 18)).
115. Brief for Respondent at 15, Katz, 389 U.S. 347 (No. 35), 1967 WL 113606, at *15. As
this finding contradicts conventional wisdom and does not seem to be recognized in any case
or secondary source, I compared the historical briefs available on Westlaw against the copies in
another historical collection, The Making of Modern Law: U.S. Supreme Court Records and
Briefs, 1832-1978, G
ALE, https://www.gale.com/c/making-of-modern-law-us-supreme-court-
records-and-briefs-1832-1978 [https://perma.cc/8PFG-9T5X]. The language is identical.
116. See Reply Brief for Petitioner at 5, Katz, 389 U.S. 347 (No. 35), 1967 WL 113607, at
*5 (“Respondent’s statement that ‘The right of privacy reflected in the guarantees of the Fourth
Amendment must be measured in terms of the reasonable expectations of a person in a given
location that he is free from scrutiny’ misinterprets the purport of the Fourth Amendment.”
(internal citation omitted) (quoting Brief for Respondent, supra note 115, at 15)).
117. See Oral Argument, supra note 102, at 23:16 (“[W]e propose a test using, in a way
it’s not too dissimilar from . . . that tort reasonable man test. . . . [W]e would ask that the test be
applied as to whether or not a third person, objectively looking at the entire scene, could rea-
November 2019] Fourth Amendment Textualism 251
“reasonable expectation of privacy” test mirrors the “reasonable expecta-
tions” formulation in the government’s brief. This confusion is all too fitting.
Even the Katz test’s origins are misunderstood. And the truth is better than
fict
io
n.
Th
e
fi
rs
t
app
li
ca
ti
on
o
f
th
e
“r
ea
so
na
bl
e
ex
pe
ct
at
io
n
of
p
ri
va
cy
”
te
st
was a historic loss for the party who proposed it.
Overlooking these unpromising origins, subsequent Supreme Court
opinions adopted the “reasonable expectation of privacy” test as the control-
ling method for determining whether challenged conduct constitutes a
Fourth Amendment “search.”
118
These later decisions also embrace Katz’s
methodology—abstracting to a principle underlying the Fourth Amendment
(privacy) and then applying that principle rather than the Amendment’s
text. After Katz, the Court consistently explains that “the application of the
Fourth Amendment depends on whether the person invoking its protection
can claim a ‘justifiable,’ a ‘reasonable,’ or a ‘legitimate expectation of privacy’
that has been invaded by government action.”
119
Although the Court occa-
sionally acknowledges the Amendment’s limited application to “persons,
houses, papers, and effects,” Katz’s “people not places” directive renders this
language largely superfluous.
120
After Katz, the definition that counts is a
definition of “privacy.”
C. Post-Katz Textual Drift
The Katz test is circular.
121
The privacy we can reasonably expect de-
pends on the privacy the Su preme Court tells us we have.
122
As a result, the
test is best understood as a formulaic incantation that precedes an answer, “ a
mere ornament, not connected with the mechanism at all.”
123
The Court
sonably interpret, and could reasonably say, that the communicator intended his communica-
tion to be confidential.”).
118. See Smith v. Maryland, 442 U.S. 735, 739–40 (1979) (identifying Katz as “our lode-
star” for “determining whether a particular form of government-initiated electronic surveil-
lance is a ‘search’ within the meaning of the Fourth Amendment,” directing an in quiry as to
whether (1) “the individual, by his conduct, has ‘exhibited an actual (subjective) expectation of
privacy,’
” and (2) “the individual’s subjective expectation of privacy is ‘one that society is pre-
pared to recognize as ‘reasonable’ ” (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring))).
119. Id. at 740.
120. See Katz, 389 U.S. at 353; see Freiwald & Smith, supra note 12, at 222 (noting that
the Court no longer “insists that the interest intruded upon be one of the categories explicitly
mentioned in the Fourth Amendment”).
121. See Kyllo v. United States, 533 U.S. 27, 34 (2001) (acknowledging criticism that the
Katz test is “circular, and hence subjective and unpredictable”); H. Richard Uviller, Evidence
from the Mind of the Criminal Suspect: A Reconsideration of the Current Rules of Access and
Restraint, 87 C
OLUM. L. REV. 1137, 1195 (1987) (“The Court seems oddly and stubbornly
oblivious to the obvious circularity . . . .”); Winn, supra note 112, at 1, 7 (“Harlan’s famous test
appears to be circular.”).
122. See Baude & Stern, supra note 22, at 1824 (“Privacy is the answer to be given, not the
question to be asked . . . .”).
123. Id. at 1825 (quoting L
UDWIG WITTGENSTEIN, PHILOSOPHICAL INVESTIGATIONS
§ 270, at 94–95 (G.E.M. Anscombe trans., 3d ed. 1953)).
252 Michigan Law Review [Vol. 118:233
barely plays along anymore, acknowledging that “no single rubric definitive-
ly resolves which expectations of privacy are entitled to protection.”
124
Ex-
pectations of privacy are re asonable or legitimate when the Court says so.
The way to find out is to ask.
125
But be prepared to wait. “[O]n average, only
about one case per year concerns some as pect of the reasonable expectation
of privacy test.”
126
The Sup reme Court’s sole effort to work through the mechanism of the
Katz test appears in a footnote in the 1978 case Rakas v. Illinois.
127
There, the
Court states, “Legitimation of expectations of privacy by law must have a
source outside of the Fourth Amendment, either by reference to concepts of
real or personal property law or to understandings that are recognized and
permitted by society.”
128
You can drive a bus through that last bit, returning
us to precisely where we started. It wasn’t long before justices started notic-
ing that the reasonable expectations of privacy recognized by society “bear
an uncanny resemblance to those expectations of privacy that this Court
considers reasonable.”
129
Courts attempting to apply Katz generally skip over the unhelpful “rea-
sonable expectation of privacy” test to the three broad categories of govern-
ment intrusions that dominate post-Katz jurisprudence: (1) information
exposed to the public;
130
(2) information provided to a third party;
131
and (3)
information that reveals only the possession of contraband.
132
When the
government obtains information that falls into any of these three categories
there is typically (but not always) no search because such conduct does not
invade a “reasonable expectation of privacy.”
124. Carpenter v. United States, 138 S. Ct. 2206, 2213–14 (2018); Byrd v. United States,
138 S. Ct. 1518, 1527 (2018) (“[T]he Court has not set forth a single metric or exhaustive list of
considerations to resolve the circumstances in which a person can be said to have a reasonable
expectation of privacy . . . .”); O’Connor v. Ortega, 480 U.S. 709, 715 (1987) (“We have no tal-
isman that determines in all cases those privacy expectations that society is prepared to accept
as reasonable.”).
125. Cf. Kerr, supra note 4, at 505 (“[S]ome suggest that the only way to identify when an
expectation of privacy is reasonable is when five Justices say so.”).
126. Id. at 538.
127. 439 U.S. 128, 143 n.12 (1978); see Slobogin & Schumacher, supra note 20, at 731
(highlighting the Rakas footnote as providing the sole guidance in this context).
128. Rakas, 439 U.S. at 143 & n.12.
129. Minnesota v. Carter, 525 U.S. 83, 97 (1998) (Scalia, J., concurring).
130. Katz v. United States, 389 U.S. 347, 351 (1967) (“What a person knowingly exposes
to the public, even in his own home or office, is not a subject of Fourth Amendment protec-
tion.”).
131. Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (“This Court consistently has held
that a person has no legitimate expectation of privacy in information he voluntarily turns over
to third parties.”).
132. Illinois v. Caballes, 543 U.S. 405, 408–09 (2005) (“We have held that any interest in
possessing contraband cannot be deemed ‘legitimate,’ and thus, governmental conduct that
only reveals the possession of contraband ‘compromises no legitimate privacy interest.’
” (quot-
ing United States v. Jacobsen, 466 U.S. 109, 123 (1984))).
November 2019] Fourth Amendment Textualism 253
When the government obtains information in a way that does not impli-
cate these three “no-search” categories, the Supreme Court typically (but not
always) deems the conduct a search. Thus, in Kyllo v. United States, (1) the
def
en
da
nt
d
id
n
ot
ex
po
se
h
is
m
ari
juana
g
ro
w-
ho
use
t
o
the
pu
bl
ic
;
(2
)
th
e
government did not obtain knowledge of its existence through a third party;
and (3) the government’s “thermal-imaging device” revealed more than just
the presence of contraband (e.g., “that someone left a closet light on”).
133
That’s a “search.” Similarly, in Arizona v. Hicks, the Court found a “search”
when, suspecting it was stolen, an officer moved a stereo to expose its serial
number.
134
The serial number had not been exposed to public view or ob-
tained from a third party, and the investigative technique was not restricted
to discovering contraband.
135
(There might have been a treasure map pinned
to the back of the stereo or embarrassing dust bunnies.)
But that’s just a descriptive guide. The three categories identified above
do little analytical work. The engine driving modern “search” jurisprudence
is an ever-expanding catalogue of Supreme Court opinions identifying which
cases fall where—all striving to channel the elusive expectations of privacy
that “society is prepared to recognize as ‘reasonable.’
”
136
This means that the
Court need not ever fully define the categories or ad here to their (unspeci-
fied) bounds. Instead, the Court embraces the free hand Katz provides to ex-
pand, contract, or ignore these categories to reach the “best” outcome.
Perhaps no case illustrates this freedom more than Carpenter. The location
information obtained by the government in Carpent er fit into both the first
(exposed to public) and second (obtained from a third party) “no-search”
categories.
137
The Carpenter majority simply moved the go alposts, depositing
the case into its own category of one, something Katz not only allows but
demands.
The Sup reme Court has only itself to blame. Katz’s “reasonable expecta-
tion of privacy” test upended a fairly coherent methodology for identifying
Fourth Amendment “searches.” Prior to Katz, some cases came out wrong
and the reasoning was, at times, breezy and obscure, but the questions the
Court asked made sense. Not so after Katz. As Justice Thomas pointed out in
Carpenter, “[a]fter 50 years, it is still unclear what question the Katz test is
even asking.”
138
The “cases are all over the map,” and the Court’s opinions
“have declined to resolve the confusion.”
139
What more is there to say? “The
133. 533 U.S. 27, 29, 38 (2001).
134. 480 U.S. 321, 325 (1987).
135. Hicks, 480 U.S. at 325 (finding search where officer “exposed to view concealed por-
tions of the apartment or its contents”).
136. See Katz v. United States, 389 U.S. 347, 361 (1967) (Harlan, J., concurring).
137. See supra notes 6–12.
138. Carpenter v. United States, 138 S. Ct. 2206, 2245 (2018) (Thomas, J., dissenting).
139. Kerr, supra note 4, at 505; cf. Morgan Cloud, The Fourth Amendment During the
Lochner Era: Privacy, Property, and Liberty in Constitutional Theory, 48 S
TAN. L. REV. 555,
616–17 (1996) (“[O]ver the past thirty years the Katz approach has degenerated into a stand-
254 Michigan Law Review [Vol. 118:233
[Katz] test is ambiguous, ahistorical, unpredictable, and fundamentally un-
legal.”
140
Un-textual too.
141
II. A RETURN TO THE FOURTH AMENDMENT’S TEXT
As the preceding discussion illustrates, the ambitious approach pio-
neered by the Supreme Court in Katz is a failure. It is time to shift to another
path. This Article proposes a return to the spirit of the pre-Katz case law,
supplemented by the rigor of modern textual interpretation. Excising Katz’s
“reasonable expectation of privacy” test from Fourth Amendment jurispru-
dence returns the Fourth Amendment’s text and its “constitutionally pro-
tected areas” to the center of the inquiry. Cases will turn on whether a
challenged government intrusion constitutes a “search”—as the term is
commonly understood—and, if so, whether it was a search of the claimant’s
(“their”) “person,” “house,” “paper,” or “effect.” The Introduction sketched
out the general approach. This Part fleshes out the inquiry, defining each of
the essential terms. As the discussion shows, the definitions are straightfor-
ward, leading to a coherent, replicable analysis that can replace the entirety
of post-Katz “search” jurisprudence.
A. Defining “Search”
The pre-Katz cases did not define the term “search.” The oversight is
understandable. Past, present, and future, the word “search” has a well-
understood meaning accessible to anyone with a command of the English
language.
142
That said, new technologies and innovative law enforcement
ardless ‘expectations’ analysis that has failed to protect either privacy or property interests.”);
Colb, supra note 19, at 123 (describing “the instability and poverty of Fourth Amendment doc-
trine” in this context); Rachel A. Harmon, The Problem of Policing, 110 MICH. L. REV. 761, 766
(2012) (“[B]y raising far more questions than it answered, Katz’s imprecise formulation
spurred years of litigation.”).
140. Baude & Stern, supra note 22, at 1888.
141. See Freiwald & Smith, supra note 12, at 222 (recognizing that the Court’s current
approach is not “a textual approach”).
142. See Carpenter, 138 S. Ct. at 2238 (Thomas, J., dissenting) (“The word was probably
not a term of art, as it does not appear in legal dictionaries from the era. And its ordinary
meaning was the same as it is today . . . .”); Kyllo v. United States, 533 U.S. 27, 33 n.1 (2001)
(“When the Fourth Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or
through for the purpose of finding something; to explore; to examine by inspection; as, to
search the house for a book; to search the wood for a thief.’
” (alteration in original) (quoting 2
WEBSTER’S, supra note 71)); GRAY, supra note 55, at 160 (explaining that the term “would not
have carried the weight of any technical meaning for most eighteenth-century American read-
ers”). The “Corpus of Founding Era American English,” a collection of 119,801 texts written
between 1760 and 1799, includes 1,685 documents that use the term “search.” Corpus of
Founding Era American English (COFEA), BYU
LAW, https://lawcorpus.byu.edu/cofea/search
/match;q=search (search results on file with the Michigan Law Review).
November 2019] Fourth Amendment Textualism 255
tactics can challenge even a familiar term.
143
And the pre-Katz case law
would have benefitted from more rigorous textual analysis, including serious
reflection about what constitutes a “search.”
144
This Section lays out a com-
prehensive definition of the term “search,” drawing on historical sources,
textual interpretation, and common sense.
145
Dictionaries of the Framing era define “search” in a familiar manner.
James Barclay’s Complete and Universal English Dictionary from 1782 de-
fines “search” as “to seek after something lost, hid, or unknown.”
146
Another
from 1785 defines the verb as “[t]o examine; to try; to explore; to look
through.”
147
Noah Webster’s 1828 American dictionary defines “search” as
“[t]o look over or through for the purpose of finding something; to explore;
to examine by inspection.”
148
Historical context sheds additional light on the intended meaning of the
term “search.” The Framing-era controversies that gave birth to the Fourth
Amendment all concerned paradigmatic searches: forced entries of homes,
generally accompanied by a seizure of private papers.
149
In the “landmark
cases” of Entick v. Carrington
150
and Wilkes v. Wood,
151
the Crown tried to
stamp out dissent by raiding the homes of disloyal printers and seizing them
143. Amsterdam, supra note 15, at 395–96 (emphasizing the difficulty of defining terms
in the Fourth Amendment); Colb, supra note 19, at 119, 124 (“‘[S]earch’ is not a self-defining
term.”).
144. The lack of a definition explains the Supreme Court’s initial failure to recognize that
a search could uncover oral statements. See Berger v. New York, 388 U.S. 41, 51 (1967) (dis-
cussing failure). This failure infected subsequent cases where, rather than rule that police might
“search” a phone booth or phone wires to detect oral conversations, the Court abandoned the
text to reach that conclusion. See supra Part I.
145. See William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not
Statutory Legislative History?, 66 G
EO. WASH. L. REV. 1301, 1315 (1998) (highlighting that
“new textualists” use historical sources as “evidence of how terms were used and what assump-
tions were made in the time of the Framers”); supra note 24 (describing the widely accepted
“new textualism” approach to constitutional interpretation).
146. J
AMES BARCLAY, A COMPLETE AND UNIVERSAL ENGLISH DICTIONARY ON A NEW
PLAN (1782).
147. S
AMUEL JOHNSON, A DICTIONARY OF THE ENGLISH LANGUAGE (1785); see also N.
BAILEY, AN UNIVERSAL ETYMOLOGICAL ENGLISH DICTIONARY (26th ed. 1789) (“To Search[:]
To seek, look for, or be in quest of.”).
148. 2
WEBSTER’S, supra note 71; accord Kyllo v. United States, 533 U.S. 27, 33 n.1 (2001)
(citing this definition).
149. See Carpenter v. United States, 138 S. Ct. 2206, 2213 (2018) (“The Founding genera-
tion crafted the Fourth Amendment as a ‘r esponse to the reviled “general warrants” and “writs
of assistance” of the colonial era, which allowed British officers to rummage through homes in
an unrestrained search for evidence of criminal activity.’
” (quoting Riley v. California, 134 S.
Ct. 2473, 2494 (2014))); Thomas Y. Davies, Recovering the Original Fourth Amendment, 98
MICH. L. REV. 547, 602 (1999).
150. 19 Howell’s State Trials 1029 (C.P. 1765).
151. 19 Howell’s State Trials 1153 (C.P. 1763).
256 Michigan Law Review [Vol. 118:233
“together with their papers.”
152
Lord Camden’s stirring opinion in Entick
warned that if the Crown ’s conduct were condoned, “the secret cabinets and
bureaus of every subject in this kingdom will be thrown open to . . . search
and inspection.”
153
In America, James Otis famously railed against the “hated
writs of assistance” that gave “customs officials blanket authority to search
where they pleased for goods imported in violation of the British tax laws.”
154
In an argument that John Adams claimed ignited the American Revolu-
tion,
155
Otis offered a chilling example of the potential for abuse.
156
Otis in-
voked a rogue writ holder (Mr. Ware) who used the writ to exact revenge on
two public officials (a judge and a constable):
Well then, said Mr. Ware, I will show you a little of my power. I command
you to permit me to search your house fo r uncustomed goods. And [Ware]
went on to search [the judge’s] house from the garret to the cellar; and then
served the constable in the same manner.
157
Anyone in po ssession of such a writ, Otis exclaimed, could similarly “in-
spect the inside of his neighbor’s house.”
158
Fourth Amendment history is
rich and nuanced, but Otis’s example vividly depicts the core grievance of
the era: officious explorations into homes. Legal historian Laura Donohue
characterizes this conduct as “promiscuous search.”
159
Another historian,
Thomas Davies, reports, “the historical record of prerevolutionary grievance
reveals no legal complaints about other kinds of searches and seizures.”
160
It
is safe to say, then, that Framing-era Americans thought the term “search”
was self-explanatory. A “search” was a search. Until Katz, that sufficed.
161
152. Stanford v. Texas, 379 U.S. 476, 483 (1965) (noting Entick and Wilkes are “landmark
cases”); William J. Stuntz, The Substantive Origins of Criminal Procedure, 105 YALE L.J. 393,
396–97 (1995) (citing Entick, Wilkes, and the 1761 Writs of Assistance Case as “these three cas-
es which were not only well known to the men who wrote and ratified the Bill of Rights, but
famous throughout the colonial population”).
153. Entick, 19 Howell’s State Trials
at 1063.
154. Stanford, 379 U.S. at 481.
155. Thomas K. Clancy, Introduction to James Otis Lecture, 74 M
ISS. L.J. 627, 628 (2004)
(quoting Adams: “Then and there was the first scene of the first act of opposition to the arbi-
trary claims of Great Britain. Then and there the child Independence was born.”).
156. J
OHN ADAMS, THE WORKS OF JOHN ADAMS, SECOND PRESIDENT OF THE UNITED
STATES 525 (1850).
157. Id.
158. Id.
159. Laura K. Donohue, The Original Fourth Amendment, 83 U.
CHI. L. REV. 1181, 1240
(2016) (discussing the historical basis of the Framing-era “objection to promiscuous search”);
see also Davies, supra note 149, at 602 (noting the Framers’ disdain for “searches of houses un-
der general warrants”).
160. See Davies, supra note 149, at 601, 603 (explaining that pertinent controversies
“were focused on searches of houses under general warrants”).
161. Modern constitutional interpretation focuses on the “original public meaning” of
the text’s provisions. See, e.g., District of Columbia v. Heller, 554 U.S. 570, 577 (2008); Law-
rence B. Solum, We Are All Originalists Now, in R
OBERT W. BENNETT & LAWRENCE B. SOLUM,
November 2019] Fourth Amendment Textualism 257
Historical sources, context, and common sense provide the raw material
to generate a straightforward “search” definition. A “search,” as contemplat-
ed in the Fourth Amendment, is an examination of an object or space to un-
co
ve
r
in
fo
rm
at
io
n
. Th
is
s
ho
rt
d
ef
init
io
n
is
i
mb
ue
d
wit
h
la
yer
s
of
m
ea
ni
n
g.
A
s
explained below, each layer fleshes out an intuitive aspect of the widely un-
derstood meaning of the term.
The use of the term “examination” in the “search” definition signals the
need for a degree of conscious effort beyond the visual and a udio scanning
that typifies human consciousness. An officer walking the beat who observes
a suspect fleeing a crime scene gathers visual information, but does not con-
duct a “search.” A search requires more than a gaze in the direction of a
phenomenon of interest. To search is to “examine by inspection,” not merely
to look at something.
162
Of course, searches may include hasty glances. For
example, if an officer enters an apartment and glances around, there is a
search of the apartment. The whole of the officer’s conduct—entering an
apartment and visually perusing the interior—constitutes the requisite “ex-
amination by inspection.”
163
Similarly, police “search” a safe when they open
it and look inside, even if it takes only a momentary glance to mentally cata-
logue the exposed contents. And while these examples all involve visual ex-
ploration, the term “examination” is not intended to exclude nonvisual
inquiries. Any manipulation of an item to uncover information—such as a
tactile pat down of the pockets of a coat or the squeezing of a bag to discern
its contents—can qualify as an “examination.”
164
Limiting the “search” definition to an examination of “objects or spaces”
reflects the understanding that while a search consists of an effort to gather
information, not all quests for information are searches. For example, a trial
is famously a “search for truth,”
165
but it is not a Fourth Amendment search.
CONSTITUTIONAL ORIGINALISM 1, 3 (2011) (suggesting that the interpretive “question should
be, How would an ordinary American citizen fluent in English as spoken in the late eighteenth
century have understood the words and phrases that make up its clauses?”); Vasan Kesavan &
Michael Stokes Paulsen, The Interpretive Force of the Constitution’s Secret Drafting History, 91
G
EO. L.J. 1113, 1118 (2003) (highlighting as key “the original meaning of the Constitution—
which we define as the meaning the words and phrases of the Constitution would have had, in
context, to ordinary readers, speakers, and writers of the English language, reading a document
of this type, at the time adopted”); Jennifer L. Mascott, Who Are “Officers of the United States”?,
70 STAN
. L. REV. 443, 466 (2018) (“Modern theorists who emphasize the meaning of the text as
the cornerstone of constitutional interpretation typically prioritize recovery of the text’s origi-
nal public meaning.”).
162. 2 WEBSTER’S, supra note 71.
163. See infra note 167 (discussing the term “examine” further and suggesting “to inspect
closely” as the appropriate definition of the term in this context); cf. United States v. Karo, 468
U.S. 705, 715 (1984) (concluding that tracking a beeper into a home “does reveal a critical fact
about the interior of the premises that the Government is extremely interested in knowing and
that it could not have otherwise obtained without a warrant”).
164. Cf. Bond v. United States, 529 U.S. 334, 339 (2000) (finding a search when agents felt
bus passenger’s carry-on luggage “in an exploratory manner”); Arizona v. Hicks, 480 U.S. 321,
324–25 (1987) (finding a search when an officer moved stereo to see serial number).
165. Nix v. Whiteside, 475 U.S. 157, 166 (1986).
258 Michigan Law Review [Vol. 118:233
A modern-day Sherlock Holmes can search her brain for the solution to a
tough case, but no one would suggest that doing so implicates the Fourth
Amendment. Analyzing the data in one’s own possession generates new in-
sig
hts
a
nd
i
nf
orma
ti
on
,
bu
t
it
i
s
no
t
a
Fo
urt
h
Am
en
dm
en
t
sea
rc
h.
166
Along
the same lines, asking someone questions is not a “search.” When the police
interrogate friends and family members about a suspect’s daily activities
there is no “search,” no matter how intimate the details revealed.
167
The last part of the proposed “search” definition (“to uncover infor-
mation”) captures two intuitions. First, a search is not merely an intrusion. It
is an i ntrusion with a purpose: a searcher tries to uncover information. This
tracks current doctrine that specifies that “a Katz invasion of privacy” is “not
alone a search unless it is done to obtain information.”
168
Thus, a police of-
ficer who accidentally knocks over a stereo and reveals hidden items under-
neath does not conduct a “search,” while an officer who moves the stereo to
see its serial number does.
169
Scraping paint from a vehicle to obtain a sam-
ple for testing would be a search of an effect;
170
keying a car out of spite
would not. Remedies, if any, for non-search intrusions would come through
reference to the separate Fourth Amendment prohibition of unreasonable
“seizures” or other statutory or constitutional provisions.
Second, in concert with the requirement of some type of “examination,”
the use of the word “uncover” indicates that a “search” seeks out information
that is hidden or otherwise not apparent. The information can be limited,
such as the presence of a fugitive in an apartment, or redundant, such as
confirmation that a suspect who appears unarmed does not have a weapon.
If the information obtained is already apparent through standard visual and
audio observation, however, gleaning that information is not it self a search.
For example, police might be interested in determining whether a suspect’s
height is consistent with eyewitness descriptions. An officer surreptitiously
estimating the suspect’s height as the suspect moves about in public gathers
information of in terest. But since a person’s height is readily apparent to the
officer who actually obtains that information, this conduct does not “uncov-
166. In typical scenarios along these lines, there is either no search or, often more obvi-
ously, no search of the claimant’s person, house, paper, or effect. See infra Section II.D.
167. The various meanings of the word “examine” create potential for confusion in this
context. See Examine, M
ERRIAM-WEBSTER, https://www.merriam-webster.com/dictionary
/examine [https://perma.cc/X496-HPN7]. The use of “examine” in the proposed search defini-
tion is intended to invoke the primary definition, “to inspect closely,” rather than the second-
ary definitions “to interrogate closely” or “to test by questioning.” Id. Common sense dictates
that this is the meaning intended in the Fourth Amendment. Framing-era citizens cared about
coercive questioning, but addressed that topic separately in the Fifth Amendment. See U.S.
CONST. amend. V.
168. United States v. Jones, 565 U.S. 400, 408 n.5 (2012); cf. Florida v. Jardines, 569 U.S.
1, 10 (2013) (concluding that a search occurred because, in part, the officers’ “behavior objec-
tively reveals a purpose to conduct a search”); Baude & Stern, supra note 22, at 1830 (“Textual-
ly, a search suggests an effort to glean information . . . .”).
169. Cf. Hicks, 480 U.S. at 325.
170. Cf. Cardwell v. Lewis, 417 U.S. 583, 588 (1974).
November 2019] Fourth Amendment Textualism 259
er” information and is not a “search.” The officer discerned the suspect’s
height but she did not “search” the suspect to do so.
171
Applying the commonsense definition of “search” sketched out above,
searches occur when police enter residences, offices, and cars lookin g for in-
formation. Police search when they look inside a bag, pat down someone’s
pockets, or manipulate a smart phone to access the data inside. Harder cases
can be confidently handled as well. Police search when they attempt to gath-
er information with metal detectors or heat sensors. Tapping into wires to
access the digital information flow constitutes a search of the wires. It is also
a search to intercept electronic signals travelling through the air. These are
all searches—although, as discussed below, some of these searches do not
implicate the Fourth Amendment.
172
The commonsense definition of “search” presented in this section reso-
nates with Akhil Amar’s critique of Fourth Amendment doctrine as “an em-
barrassment.”
173
Amar ridicules the Supreme Court for failing to recognize
that it is a search “[w]hen a Secret Service agent at a presidential event” is
“wearing sunglasses and scanning the crowd in search of any small signal
that something might be amiss.”
174
Amar explains: “A search is a search,
whether with Raybans or x-rays.”
175
Amar’s exasperation builds with further
examples: “A far more egregious example comes from the Court’s so-called
open-field doctrine, whereby trespassing on a person’s property, climbing
over her fences and peering into her barns is somehow not a search . . . .”
176
Amar’s indictment of the doctrine is compelling. But, as the next Section
explains, this critique of the Court’s rulings loses force because it overlooks
the rest of the Fourth Amendment. The Amendment is not triggered unless
the searched item constitutes a “person, house, paper or effect.” Even if Am-
ar is right, and the agents scanning public spaces and scurrying around on
171. Only the most basic information detection will evade constitutional regulation un-
der the “examination . . . to uncover” proviso. This is because the fact that something is appar-
ent to some member of the public through standard visual-audio observation does not make it
apparent to the government. The constitutional inquiry is whether the police conducted a
search—not whether they could theoretically have obtained the information without one. This
focus on the government’s conduct in obtaining information, rather than the information’s
private (or public) nature, is a key distinction between textualist analysis and Katz’s privacy-
focused approach. See United States v. Jacobsen, 466 U.S. 109, 119 (1984) (concluding that be-
cause a private party had already observed the contents of a previously closed package, “it
hardly infringed respondents’ privacy for the agents to reexamine the contents of the open
package by brushing aside a crumpled newspaper and picking up the tube”); United States v.
Knotts, 460 U.S. 276, 282 (1983) (finding no search in use of tracking device because “[v]isual
surveillance from public places . . . would have sufficed to reveal all of these facts to the po-
lice”); see also infra Section III.B.
172. See infra Section II.B.
173. Amar, supra note 28, at 757.
174. Id. at 768.
175. Id. at 769. Amar suggests that these are searches, but “reasonable” searches and so
constitutionally permitted. Id.
176. Id. at 768 n.38.
260 Michigan Law Review [Vol. 118:233
undeveloped lands are conducting searches, neither example presents a
search of “persons, houses, papers, and effects.” As a result, these searches
possess no Fourth Amendment significance.
177
B. “Persons, Houses, Papers”
The fact that the police conduct a “search” does not itself trigger Fourth
Amendment protection. The Amendment’s protections only apply if the
item searched can fairly be characterized as a person, house, paper, or ef-
fect.
178
This reflects the text and history of the Fourth Amendment. The zeit-
geist that brought the Fourth Amendment into being targeted “practices
[that] were offensive because they impin ged upon things held dear by those
subjected to the search es or seizures, such as their persons, homes, and pri-
vate papers.”
179
This Section explores the three most straightforward aspects
of this portion of the Fourth Amendment’s text: “persons,” “houses,” and
“papers.” The next section fleshes out “effects.”
The first of the Fourth Amendment’s constitutionally protected areas—
searches of “persons”—is important, but discrete. When police look inside a
body cavity, take blood or fingerprints, scrape a cheek for a DNA sample, or
administer a breathalyzer test, they conduct a search of the “person.” A pat
down, a metal detector’s scan, or a command that suspects remove their
clothes—all intended to detect concealed items—is a “search” of the “per-
son.” In each scenario there is an examination of an object (the person’s
body) to uncover information.
An important, if subtle, distinction that carries throughout the Fourth
Amendment’s text is particularly important here. The terms “persons, hous-
es, pa pers, and effects” are listed in the Fourth Amendment as potential ob-
jects of searches: things the police might search.
180
These terms are not
search outcomes: things police might find. This follows from the text of the
Amendment, which protects the people’s right to be “secure in their persons,
houses, papers, and effects, against unreasonable searches.”
181
People ar e se-
cure in their houses against unreasonable searches, for example, when police
do not search their house. The right is not fairly read to restrict a police of-
ficer’s ability to pass by houses of interest and observe them from the street.
It follows from this distinction that it is not sufficient to trigger the
Fourth Amendment that the police observed or located a person. The
Amendment’s protections only come into play when they search that person.
177. Cf. Olmstead v. United States, 277 U.S. 438, 465 (1928) (explaining “open fields”
cases as follows: “While there was a trespass, there was no search of person, house, papers or
effects.”).
178. U.S.
CONST. amend. IV.
179. Clancy, supra note 57, at 310; Davies, supra note 149, at 590 (“[T]hey were con-
cerned that legislation might make general warrants legal in the future, and thus undermine
the right of security in person and house.”).
180. See U.S.
CONST. amend. IV.
181. Id.
November 2019] Fourth Amendment Textualism 261
Thus, public surveillance cameras that capture a person’s image and reveal
that person’s location at a particular time have not conducted a search of
that person. At most, the cameras searc hed a public space (and found a per-
s
on
).
B
y
co
nt
ra
st
,
th
e
use
o
f
an
i
nf
rar
ed
ca
mer
a
to
de
te
ct
t
ha
t
th
e
pe
rs
on
i
s
carrying a concealed weapon would constitute a search of the person.
The Fourth Amendment next restricts searches of “papers.” The term is
readily interpreted, even in light of sweeping changes to recording and
communication practices. Samuel Johnson’s 1785 dictionary defined “paper”
as a “[s]ubs tance on which men write and print,” adding that the term is
“used particularly of essays or journals, or any thing printed on a sheet.”
182
Noah Webster similarly defined “paper” in 1828 as “[a] substance formed
into thin sheets on which letters and figures are written or printed.”
183
This
term, explicitly defined at the time of the Framing through the prism of
then-existing recordkeeping technology, must be updated to capture modern
practice. Now the “substance on which men [and women] write and print” is
most often electronic. “Electronic records” created with computers and
transmitted via email and text messaging are the precise equivalent of the
ph
ys
ic
al
“
pape
rs”
t
ha
t
or
ig
inal
ly
ne
ce
ss
it
at
ed
Fo
ur
th
A
men
dmen
t
pr
ot
ec
-
tion.
184
Books and journals are now “PDF” files and word-processing docu-
ments. Emails and text messages are today’s letters and notes.
A common thread in fairly interpreting the term “papers” runs through
physical to electronic documents, all consciously used to store and transmit
information. The expansive language in the Framing-era “papers” cases, like
Entick v. Carrington, ease any doubts that the concerns of the era expanded
to any form of writing.
185
The Bill of Rights itself was memorialized on
parchment (animal skin) not “paper.”
186
By contrast, electronic information
that is not consciously communicated or stored—such as a notification
sound that rings out upon receipt of a text message or an electronic ping
182. JOHNSON, supra note 147.
183. 2
WEBSTER’S, supra note 71.
184. Cf. Carpenter v. United States, 138 S. Ct. 2206, 2222 (2018) (agreeing with Justice
Kennedy’s dissenting opinion that electronic records are “the modern-day equivalents of an
individual’s own ‘papers’ or ‘effects’
” (quoting id. at 2230 (Kennedy, J., dissenting))); Entick v.
Carrington, 19 Howell’s State Trials 1029, 1066 (C.P. 1765) (“Papers are the owner’s . . . dearest
property . . . .”); Clancy, supra note 57, at 310 (explaining that the Framers specified items that
were “held dear by those subjected to the searches or seizures”); Ryan, supra note 24, at 1543
(noting that the most faithful interpretation of constitutional provisions will often be to apply
them to incorporate new technologies that “did not exist” at the time of the Framing).
185. See Entick, 19 H
OWELL’S STATE TRIALS at 1064 (condemning the seizure of “all the
papers and books without exception”); id. (criticizing the search and seizure of Entick’s “most
valuable secrets . . . before he is convicted either of writing, publishing, or being concerned in
the paper”); id. at 1066 (“Papers are the owner’s goods and chattels: they are his dearest prop-
erty; . . . they will hardly bear an inspection . . . .”). For a thorough discussion of the Framing-
era controversies over searches and seizures of “papers,” see Eric Schnapper, Unreasonable
Searches and Seizures of Papers, 71 V
A. L. REV. 869 (1985).
186. See Carlton F.W. Larson, The Declaration of Independence: A 225th Anniversary Re-
Interpretation, 76 W
ASH. L. REV. 701, 786 (2001) (noting use of parchment).
262 Michigan Law Review [Vol. 118:233
emitted by a cell phone, remote control, or door opener—would not consti-
tute one’s “papers.” Oral conversations, which were well known in the Fram-
ing era, also should not be included in the term.
187
Defining the term “houses” should not be difficult. Any dwelling should
qualify.
188
Current doctrine ca sually extends the term’s reach to “commercial
premises.”
189
Although work needs to be done to justify this expansion,
190
there is little controversy among judges or scholars that the term “house” ex-
tends to “a whole host of home-like settings,”
191
including all the “places
‘where people live, work, and play.’ ”
192
In addition, the “curtilage,” loosely
defined as the area immediately surrounding the house, is “considered part
of the home itself for Fourth Amendment purposes.”
193
C. “And Effects”
In the Fourth Amendment’s list of potential “search” targets, the term
“effects” requires the most discussion. It is not as common as the other terms
in the Fourth Amendment, and it is the most susceptible to fanciful interpre-
tation. As explained below, the historical evidence allows for a relatively de-
finit
iv
e
int
er
pr
eta
ti
on
.
“E
f
f
ec
ts”
was
u
se
d
in
the
F
ram
ing
er
a
as
a
c
at
ch
al
l
term that included all tangible objects a person might possess, but not real
property (land) and structures (buildings). This understanding can be seam-
lessly translated into modern times, with “effects” capturing all personal
property, including items unknown in the Framing era, like computers and
smartphones, but excluding intangible items, whether modern or ancient.
The Fourth Amendment’s use of the term “effects” has an intriguing
origin story. James Madison’s draft of the Amendment does not mention ef-
fects.
194
The draft drew from state constitutional provisions that also did not
187. For further discussion of “papers,” see infra Section III.C (applying Fourth Amend-
ment Textualism in a variety of scenarios).
188. See 1 W
EBSTER’S, supra note 71 (defining “house” as “a building or shed intended or
used as a habitation or shelter for animals of any kind”).
189. Mancusi v. DeForte, 392 U.S. 364, 367 (1968).
190. See Davies, supra note 149, at 608 (“[T]here is little in the historical record to sup-
port the current assumption that the Framers intended the Fourth Amendment to protect
commercial premises in addition to houses.”).
191. See Andrew Guthrie Ferguson, The Internet of Things and the Fourth Amendment of
Effects, 104 C
ALIF. L. REV. 805, 857 (2016).
192. See Eulis Simien, Jr., The Interrelationship of the Scope of the Fourth Amendment and
Standing to Object to Unreasonable Searches, 41 A
RK. L. REV. 487, 554 (1988) (quoting William
A. Knox, Some Thoughts on the Scope of the Fourth Amendment and Standing to Challenge
Searches and Seizures, 40 MO. L. REV. 1, 20 (1975)).
193. Oliver v. United States, 466 U.S. 170, 180 (1984); accord United States v. Dunn, 480
U.S. 294, 300 (1987) (“The curtilage concept originated at common law to extend to the area
immediately surroundin g a dwelling house the same protection under the law of burglary as
was afforded the house itself.”).
194. T
HE COMPLETE BILL OF RIGHTS: THE DRAFTS, DEBATES, SOURCES, AND ORIGINS 333
(Neil H. Cogan ed., 2d ed. 2015) (text of proposal by Madison in House, June 8, 1789).
November 2019] Fourth Amendment Textualism 263
include the term.
195
Apart from this omission, the Massachusetts Constitu-
tion closely paralleled the ultimately enac ted Fourth Amendment. It stated:
“Every subject has a right to be secure from all unreasonable searches, and
seizures, of his person, his houses, his papers, and all his possessions.”
196
Madison’s fellow Virginians submitted a proposed federal right to the Con-
stitutional Co nvention that took a similar approach, advocating “[t]hat every
freeman has a right to be secure from all unreasonable searches and siezures
[sic] of his person, his papers and his property.”
197
Madison’s draft of the Fourth Amendment united the Massachusetts
and Virginia approaches. Madison adopted Massachusetts’s terms (two of
which Virginia also employed) but preferred Virginia’s “property” to Massa-
chusetts’s “possessions” as the catchall.
198
The House of Representatives
routed Madison’s proposal to a Committee of Eleven, which produced the
ultimately enacted text.
199
“The Committee changed Madison’s language that
protected ‘persons, houses, papers, and other property,’ to ‘persons, houses,
papers, and effects.’ ”
200
There is no direct evidence of the Committee’s pur-
pose.
201
In the Framing era, the term “effects” was invoked in will contests and
proceedings to divide up the contents of lawfully seized ships.
202
In both con-
texts, the term broadly extended to all tangible items, but not real property
(or the ships themselves).
203
Helpfully, some Framing-era cases turn entirely
195. Id. at 344–45.
196. M
ASS. CONST. art. XIV; accord Osmond K. Fraenkel, Concerning Searches and Sei-
zures, 34 HARV. L. REV. 361, 362 (1921) (“The language of the Fourth Amendment, indeed, is
almost identical with that in the Massachusetts Declaration of Rights of 1765, and in the same
state’s Constitution of 1780.” (footnote omitted)); see THE COMPLETE BILL OF RIGHTS, supra
note 194, at 344.
197. T
HE COMPLETE BILL OF RIGHTS, supra note 194, at 343 (alteration in original) (text
of Virginia’s proposal).
198. Id. at 333 (text of Madison’s proposal to House).
199. See Maureen E. Brady, The Lost “Effects” of the Fourth Amendment: Giving Personal
Property Due Protection, 125 Y
ALE L.J. 946, 984 (2016) (explaining the Committee of Eleven as
“a committee made up of a delegate from each state that had already ratified the Constitu-
tion”).
200. Donohue, supra note 159, at 1301 (emphases added by Donohue) (quoting U.S.
CONST. amend. IV and THE COMPLETE BILL OF RIGHTS, supra note 194, at 333).
201. Davies, supra note 149, at 710 (“Because there are no records of the Committee’s
deliberations, one can only speculate as to why the committee substituted ‘effects’ for Madi-
son’s ‘property.’
”).
202. See, e.g., The Josefa Segunda, 23 U.S. (20 Wheat.) 312, 322 (1825) (“The principal
proceedings are certainly to be against the vessel, and the goods and effects found on board.”);
The Star, 16 U.S. (3 Wheat.) 78, 81 (1818) (interpreting prize statute that listed “all vessels,
goods and effects” (construing Act of June 26, 1812, ch. 107, 2 Stat. 759, 760)).
203. Davies, supra note 149, at 605 (arguing that “no late eighteenth-century lawyer
would have imagined that ships were entitled to the same common-law protection due ‘houses,
papers, and effects’
”); see, e.g., Doe v. Dring (1814) 105 Eng. Rep. 447, 450; 2 M. & S. 448, 454
(Lord Ellenborough L.J.) (K.B.) (“We have a familiar meaning attached to the word effects, in
its common use, and as it is used in the statutes relating to bankrupts, where estate and effects,
264 Michigan Law Review [Vol. 118:233
on how the term “effects” would be understood by a knowledgeable person
of the era. One 1755 judicial opinion explained, “[t]he word effects is proper-
ly applicable only to personal estate. All the dictionaries explain it by the
wo
rd
s
‘g
ood
s
and
m
ovea
bl
es
’
.
.
.
.”
204
And a later case (1814) picked up the
same thread: “[I]ndependently of all context, whenever the Court has had
occasion to consider the primary import of the word effects, it has always
held it to relate to things personal only.”
205
Noah Webster’s often-invoked
1828 dictionary provides this helpful definition: “In the plural, effects are
goods; movables; personal estate. The people escaped from the town with
their effects.”
206
The historical definitions and context suggest that the constitutional
drafters selected the term “effects” as much for what it excludes as for what it
includes. “Effects” is a broad term, but it was a word that functioned in the
Founding era to exclude certain property, and particularly real property.
207
The change brought Madison’s proposal closer to Massachusetts’s version of
the same right, which limited its protections to persons, houses, papers, and
possessions.
208
This contrasted wi th Virginia’s broader term “property,”
209
yet
it also explains why the drafters did not simply adopt Massachusetts’s word-
ing. “P roperty” seems to include buildings and land; “possessions” might in-
clude those items; “effects” does not. In light of this history, the Supreme
Court has recognized: “The Framers would have understood the term ‘ef-
fects’ to be limited to personal, rather than real, property.”
210
Historians
agree.
211
reddendo singula singulis, denote, the one things personal, the other things real; and I am not
aware of any case where it has been holden in its primary and original signification to mean
things real.” (emphasis added)).
204. Hogan v. Jackson (1775) 98 Eng. Rep. 1096, 1098; 1 Cowp. 299, 302 (K.B.).
205. Doe, 105 Eng. Rep. at 449; 2 M. & S. at 453.
206. 1
WEBSTER’S, supra note 71 (emphasis in original); cf. Arthur v. Morgan, 112 U.S.
495, 499–500 (1884) (concluding that a carriage qualified as “household effects” because “[t]he
word ‘effects’ means ‘property or worldly substance’ ”).
207. See Carpenter v. United States, 138 S. Ct. 2206, 2241 (2018) (Thomas, J., dissenting)
(“This change might have narrowed the Fourth Amendment by clarifying that it does not pro-
tect real property (other than houses).”).
208. See supra note 195 and accompanying text.
209. See supra note 196 and accompanying text.
210. Oliver v. United States, 466 U.S. 170, 177 n.7 (1984). See su pra note 161 for the
modern view of constitutional interpretation, which focuses on “original public meaning” ra-
ther than the Framers’ in tent.
211. Brady, supra note 199, at 985 (“[R]eaders generally agree that the consequence was
to narrow the Amendment’s coverage.”); Thomas K. Clancy, The Framers’ Intent: John Adams,
His Era, and the Fourth Amendment, 86 I
ND. L.J. 979, 1048 (2011) (“Those changes restored
the amendment to the Madison draft proposal, with the sole substantive change being a nar-
rowing of the objects protected from ‘other property’ to ‘effects.’ ”); Davies, supra note 149, at
710–11 (“Because ‘effects’ was usually understood to designate moveable goods or property
(but not real property or premises), the most likely explanation for the substitution is that the
Committee intended to narrow the scope of interests protected by Madison’s proposal.”); cf.
Donohue, supra note 159, at 1301 (“In making this alteration, the Committee extended the
November 2019] Fourth Amendment Textualism 265
Thus, the term “effects” should be interpreted to encompass all movea-
ble personal property. This is consistent with the Supreme Court’s character-
ization of luggage and vehicles as “effects.”
212
Importantly, the term can fair-
fairly be construed to include computers in any form, such as routers,
smartphones, or tablets, and other electronic accessories, like wires. Thus,
tapping into a wire to intercept the signals flowing inside constitutes a
“search” of an “effect” (the wire). Immoveable structures and real property
are not covered by the term. This means no barns or phone booths (sorry
Katz).
213
Also excluded would be discarded hair, saliva, urine, or dust,
214
alt-
hough personal collections of such items (not recommended) could consti-
tute a person’s effects.
Of particular interest to a modern audience, the term “effects” does not
include ephemeral items like a person’s voice, image, or cell phone signals.
Amar and other commentators urge the Court to expand the term “effects”
to “intangibles,” like conversations and electronic pulses.
215
A textualist ap-
proach does not support this extension. As the foregoing discussion shows,
the term “effects” applied to tangible personal property. Items fitting that de-
scription but unknown to the Framing era, like smartphones, can, of course,
be placed in the ca tegory of modern “effects.” This parallels the seamless ex-
meaning beyond personal property or possessions (as implied in ‘other property’) to include
commercial items and goods.”).
212. United States v. Jones, 565 U.S. 400, 404 (2012) (“It is beyond dispute that a vehicle
is an ‘effect’ as that term is used in the Amendment.”); Bond v. United States, 529 U.S. 334, 336
(2000) (“A traveler’s personal luggage is clearly an ‘effect’ protected by the Amendment.”);
Ferguson, supra note 191, at 828–29 (listing items characterized by the Court as “effects,” in-
cluding “containers, packages held by a person, packages given to private carriers, footlockers,
automobiles, as well as a variety of contraband” and noting that lower courts have “recognized
such unusual things as apiaries (beehives) and dogs to be effects” (footnotes omitted)).
213. Phone booths and barns would more properly be considered under the term
“house.” See supra Section II.B. The phone booth in the popular BBC show Dr. Who would
constitute an “effect” since it is moveable, a “house” because it contains living quarters, and
also a “person” since it seems sentient. See The TARDIS, T
HE DOCTOR WHO SITE,
http://www.thedoctorwhosite.co.uk/tardis/ [https://perma.cc/BBW8-P6EZ].
214. See Ferguson v. City of Charleston, 532 U.S. 67, 92 (2001) (Scalia, J., dissenting)
(“[I]t is entirely unrealistic to regard urine as one of the ‘effects’ (i.e., part of the property) of
the person who has passed and abandoned it.”); State v. Reldan, 495 A.2d 76, 83 (N.J. 1985)
(rejecting contention that “common detritus—samples of dirt, debris, hair, and the like” could
be considered “the personal effects or private property of the defendant”); cf. Brady, supra note
199, at 1003 (discussing urine and dirt examples). Extracting urin e for testing would, however,
be a search of the person. Vernonia Sch. Dist. 47J v. Acton, 515 U.S. 646, 672–73 (1995)
(O’Connor, J., dissenting) (“[T]he collection and testing of urine is, of course, a search of a per-
son.”).
215. Amar, supra note 28, at 803 (contending that the Court should construe audio bugs
to be searches that capture “some of [their target’s] most valuable ‘effects,’ namely, her private
conversations”); id. at 811 (“[A] great many government actions can be properly understood as
‘searches’ or ‘seizures,’ especially when we remember that a person’s ‘effects’ may be intangi-
ble—as the landmark Katz case teaches us.”); Ferguson, supra note 191, at 874 (proposing to
“semantically and theoretically redefine[] a Fourth Amendment effect to cover the internal
data and external communications of an object connected to the Internet of Things.”).
266 Michigan Law Review [Vol. 118:233
tension of “papers” to electronic documents discussed in the preceding sec-
tion. Intangible items, whether modern or ancient, cannot be labeled “ef-
fects.” There is no textual or historical connection between these items and
th
e
wo
rd
“
ef
fe
ct
s.
”
Nei
th
er
t
he
m
od
er
n
no
r
the
Fr
am
ing
-er
a
cit
i
ze
nr
y
wo
ul
d
think that a person who conveyed all his effects to his children conveyed
conversations and wireless signals.
216
Nor could anyone read Noah Web-
ster’s example—“The people escaped from the town with their effects”
217
—to
communicate that the refugees took flight with their conversations, memo-
ries, and, in a modern context, cell phone location information.
Having defined “search” and “persons, houses, papers, and effects,”
there remains one last piece to Fourth Amendment Textualism. The
Amendment’s text imposes an implicit restriction on the categories of per-
sons who can claim Fourth Amendment violations. The next Section takes
up this restriction.
D. “Their” Replaces Third-Party Doctrine and Standing
The Supreme Court has long held that “rights assured by the Fourth
Amendment are personal rights” and “may be enforced . . . only at the in-
stance of one whose own protection was infringed by the search and sei-
zure.”
218
The Court’s rationale for this requirement has shifted over time.
219
From a textualist perspective, the principle follows from the use of the pos-
sessive “their” in the Amendment’s text. The Fourth Amendment states:
“The right of the people to be secure in their persons, houses, papers, and ef-
fects, against unreasonable searches and seizures, shall not be violat-
ed . . . .”
220
The textual argument is strengthened by the analogous state constitu-
tional provisions and proposals from which the Amendment was crafted.
Both the Massachusetts Constitution and the Virginia proposal, from which
Madison drew, used wording that, while inelegant and gendered, made the
possessive point explicit.
221
For example, the Massachusetts Constitution
216. Amar, supra note 28, at 803 (contending that “private conversations” are among
one’s “most valuable ‘effects’ ”).
217. 1
WEBSTER’S, supra note 71.
218. Simmons v. United States, 390 U.S. 377, 389 (1968).
219. See Byrd v. United States, 138 S. Ct. 1518, 1530 (2018) (“Fourth Amendment stand-
ing is subsumed under substantive Fourth Amendment doctrine . . . .”); Minnesota v. Carter,
525 U.S. 83, 88 (1998) (highlighting textual argument); Rakas v. Illinois, 439 U.S. 128, 132–33
n.2 (1978) (explaining that the Fourth Amendment “standing” requirement derives from con-
stitutional, not statutory, authority); Simmons, 390 U.S. at 389 (unstated); Jones v. United
States, 362 U.S. 257, 260 (1960) (relying on F
ED. R. CRIM. P. 41(e)).
220. U.S.
CONST. amend. IV (emphasis added).
221. See M
ASS. CONST. art. XIV; THE COMPLETE BILL OF RIGHTS, supra note 194, at 343
(Virginia proposal) (“[E]very freeman has a right to be secure from all unreasonable search-
es . . . of his person, his papers and his property . . . .”); cf. Akhil Reed Amar, The Bill of Rights
as a Constitution, 100 YALE L.J. 1131, 1176 (1991) (“Madison was surely aware of these formu-
lations, given his leading role in the Virginia convention . . . .”).
November 2019] Fourth Amendment Textualism 267
stated (and still states), “Every subject has a right to be secure from all unrea-
sonable searches and seizures, of his person, his houses, his papers, and all
his possessions.”
222
In his proposal to the House, Madison replaced “[e]very
subject” with “the people,” and accordingly substituted a serial use of “their”
for Massachusetts’s serial use of “his.”
223
The Committee of Eleven edited
Madison’s clunky serial “theirs” to a single “their” appearing at the head of
the list of protected items in the final version of the Amendment.
224
This
same format (a single “their”) appeared in the Pennsylvania and Vermont
Constitutions.
225
There is no suggestion in the historical sources or the aca-
demic literature that these facially stylistic changes were intended to alter the
underlying nature of the protected right.
226
The Supreme Court adopted the textual interpretation set forth above in
Minnesota v. Carter;
227
in fact, Justice Scalia thought any contrary interpreta-
tion to be “so absurd that it has to my knowledge never been contemplat-
ed.”
228
That is an overstatement,
229
but the principle has a powerful allure—
and strong historical and textual backing. In light of the alternatives, the
most faithful interpretation of the Fourth Amendment’s text is that “each
222. MASS. CONST. art. XIV.
223. T
HE COMPLETE BILL OF RIGHTS, supra note 194, at 333 (stating the text of Madison’s
proposal to the House, which protected “[t]he rights of the people to be secured in their per-
sons, their houses, their papers. [sic] and their other property” (alteration in original)).
224. Id. at 334
(text of report of the Committee of Eleven).
225. P
A. CONST. of 1776, cl. 10; VT. CONST. of 1777, ch. I, cl. 11.
226. See Minnesota v. Carter, 525 U.S. 83, 93–94 (1998) (Scalia, J., concurring) (“There is
no indication anyone believed that the Massachusetts, New Hampshire, New York, and North
Carolina texts, by using the word ‘his’ rather than ‘their,’ narrowed the protections contained
in the Pennsylvania and Vermont Constitutions.”).
227. Id. at 89 (majority opinion) (“The text of the Amendment suggests that its protec-
tions extend only to people in ‘their’ houses.”); see also Carpenter v. United States, 138 S. Ct.
2206, 2235 (2018) (Thomas, J., dissenting) (emphasizing the same principle).
228. Carter, 525 U.S. at 92 (Scalia, J., concurring).
229. Commentators do not all accept the individual nature of the right. See, e.g., Amster-
dam, supra note 15, at 367 (arguing that the language “[t]he right of the people” undermines
treating the rights as “
‘personal rights’ of isolated individuals”) (alteration in original) (quoting
U.S. CONST. amend. IV and Alderman v. United States, 394 U.S. 165, 174 (1969)); Donald L.
Doernberg, “The Right of the People”: Reconciling Collective and Individual Interests Under the
Fourth Amendment, 58 N.Y.U. L. REV. 259, 294 (1983) (proposing that the Court view the
Fourth Amendment as “a collective constitutional right” that can be invoked by anyone against
whom the government uses improperly searched or seized evidence). An alternative way to
view the concept is that while the right is personal, the remedy need not be. See Rachel A.
Harmon, Legal Remedies for Police Misconduct, in 2 T
HE ACADEMY FOR JUSTICE, REFORMING
CRIMINAL JUSTICE 27, 46–50 (Erik Luna ed., 2017), http://academyforjustice.org/wp-
content/uploads/2017/10/Reforming-Criminal-Justice_Vol_2.pdf [https://perma.cc/36XN-
SARX]. That framing could allow defendants to vicariously invoke the Fourth Amendment
rights of others to suppress evidence. See In re Lance W., 694 P.2d 744, 747 (1985) (describing
California’s “vicarious exclusionary rule” and its abolition by state constitutional amendment).
268 Michigan Law Review [Vol. 118:233
person has the right to be secure against unreasonable searches and seizures
in his own person, house, papers, and effects.”
230
The personal nature of Fourth Amendment ri ghts means that a person
cannot claim a Fourth Amendment violation based on the government’s
search of someone else’s “person, houses, papers, and effects.” Thus, a mur-
der suspect cannot invoke the Fourth Amendment to object to an unreason-
able search of the victim’s fingernails or phone. In such a scenario, the police
search the victim’s person and effects, not those of the suspect.
The Supreme Court and commentators usually conceptualize the prin-
ciple described above as a kind of “standing” requirement.
231
Defendants
must show no t only a violation of the Fourth Amendment but also a viola-
tion of “their” own Fourth Amendment rights.
232
In Supreme Court opin-
ions, Fourth Amendment standing is sometimes dispositive
233
and other
times ignored.
234
Periodically, the Court signals a desire to incorporate “standing” into the
substantive Fourth Amendment analysis,
235
but commentators
236
and judg-
es
237
resist. Merging the two inquiries creates confusion. At present, the con-
fusion stems from Katz. The Katz test asks whether the subject of a potential
“search” possesses a “reasonable expectation of privacy.”
238
It is difficult to
conceptualize that inquiry separately from the “personal” nature of the
Fourth Amendment right. Under current doctrine, the analysis also overlaps
with third-party doctrine. One reason that I might not be able to show a vio-
230. Carter, 525 U.S. at 92 (Scalia, J., concurring) (emphasis in original).
231. See Byrd v. United States, 138 S. Ct. 1518, 1530 (2018) (“The concept of standing in
Fourth Amendment cases can be a useful shorthand for capturing the idea that a person must
have a cognizable Fourth Amendment interest in the place searched before seeking relief for an
unconstitutional search . . . .”).
232. See United States v. Payner, 447 U.S. 727, 731 (1980) (“[T]he defendant’s Fourth
Amendment rights are violated only when the challenged conduct invaded his legitimate ex-
pectation of privacy rather than that of a third party.” (emphasis in original)); Rakas v. Illinois,
439 U.S. 128, 134 (1978) (“A person who is aggrieved by an illegal search and seizure only
through the introduction of damaging evidence secured by a search of a third person’s premis-
es or property has not had any of his Fourth Amendment rights infringed.”).
233. E.g., Rakas, 439 U.S. at 148–50 (rejecting Fourth Amendment claim based on lack of
standing).
234. See, e.g., Carpenter v. United States, 138 S. Ct. 2206 (2018) (failing to address de-
fendant’s standing to contest search of phone company records).
235. See Rawlings v. Kentucky, 448 U.S. 98, 106 (1980) (“After Rakas, the two inquiries
merge into one[:] whether governmental officials violated any legitimate expectation of privacy
held by petitioner.”); Rakas, 439 U.S. at 139 (“[W]e think the better analysis forthrightly focus-
es on the extent of a particular defendant’s rights under the Fourth Amendment, rather than
on any theoretically separate, but invariably intertwined concept of standing.”).
236. E.g., W
AYNE R. LAFAVE ET AL., CRIMINAL PROCEDURE § 9.1(a) (6th ed. 2017) (em-
phasizing that the “inquiry deserves separate attention no matter what label is put upon it”).
237. E.g., Rawlings, 448 U.S. at 112 (Blackmun, J., concurring) (explaining that merging
the inquiries “would invite confusion”).
238. See supra notes 110–111 and accompanying text.
November 2019] Fourth Amendment Textualism 269
lation of my personal Fourth Amendment rights is that the government ob-
tained my information from another party.
239
Thus, three concepts, (1) the
“personal” nature of Fourth Amendment rights; (2) the related if not identi-
cal notion of “standing”; and (3) third-party doctrine, all share common at-
tributes—and common confusion. The root of the problem is always Katz.
Once the Court abandons the “reasonable expectation of privacy” test in fa-
vor of Fourth Amendment Textualism, all three inquiries collapse neatly into
the straightforward textual analysis described below.
The textualist need not determine “whether the person claiming the
constitutional violation had a ‘legitimate expectation of privacy in the prem-
ises’ [or object] searched.”
240
Instead, the text-based answer turns on a clear-
er inquiry: assessing whether the search ed item was the person, house, paper,
or effect of the Fourth Amendment claimant or someone else. The textualist
inquiry will often lead to the same conclusion as current Fourth Amendment
“standing” doctr ine. The key distinction is the method of analysis. Fourth
Amendment Textualism focuses on whose object or space was searched, ra-
ther than whose “reasonable expectation of privacy” was invaded. As a result,
the inquiry is more concrete and does not overlap with the threshold ques-
tion of whether a “search” occurred.
The textual analysis described above also eliminates the need for any
distinct “third-party doctrine” in Fourth Amendment jurisprudence. Third-
party doctrine is built upon the “reasonable expectation of privacy” test.
241
The eviction of Katz from Fourth Amendment jurisprudence ushers out
third-party doctrine as well. Importantly, the abolition of third-party doc-
trine does not mean that Fourth Amendment protections will always survive
transfers of information to third parties. As discussed below, under Fourth
Amendment Textualism, there are three possibilities. In some cases current-
ly resolved by third-party doctrine, a textualist approach reveals that there is
no “search.” In others, the claimant cannot bring a Fourth Amendment chal-
lenge because the item searched is not “their” “person,” “house,” “paper,” or
“effect.” And in still others, a text-focused app roach reverses the “no-search”
answer provided by current third-party doctrine.
A textualist approach resolves some third-party doctrine cases by high-
lighting the absence of any search. This is the result in the cases that gave
239. See, e.g., United States v. Payner, 447 U.S. 727, 732 (1980) (concluding that Payner
had “no privacy interest in the Castle Bank documents that were seized from Wolstencroft”
(quoting United States v. Payner, 434 F. Supp. 113, 126 (1977))).
240. Byrd v. United States, 138 S. Ct. 1518, 1526 (2018) (quoting Rakas, 439 U.S. at 143);
Rawlings, 448 U.S. at 106 (asking “whether governmental officials violated any legitimate ex-
pectation of privacy held by petitioner”).
241. See Carpenter v. United States, 138 S. Ct. 2206, 2246 (2018) (Gorsuch, J., dissenting)
(“[I]t was Katz that produced Smith and Miller in the first place.”); Kerr, supra note 17, at 589
(explaining the Court’s effort to “establish[] the third-party doctrine as an application of the
Katz test” but recognizing that “this doctrinal home never fit”); supra Section I.C. Kerr sug-
gests that the doctrine should be grounded in “consent law.” Kerr, supra note 17, at 589.
270 Michigan Law Review [Vol. 118:233
birth to third-party doctrine: the so-called “false friends,”
242
“pretend
friend,”
243
or “secret agent cases.”
244
In this line of cases, decided both before
and after Katz, the Supreme Court confronted related fact patterns involving
defendants’ oral statements to government informants and undercover offic-
ers.
245
In some cases the informants then testified to the incriminating
statements; in others, the government recorded the disclosures and played
them at trial.
246
Attempting to filter the “false friend” cases through Katz’s “reasonable
expectation of privacy” test invites chaos.
247
Without Katz, however, the cas-
es are simple. Recording a conversation, like asking questions and memoriz-
ing or writing down answers, is not a “search.”
248
In fact, a line of pre-Katz
cases involving agents listening in on a phone extension focuses on statutory
claims and does not even reference the Fourth Amendment.
249
Without
Katz, there is typically no “search” to challenge when a government agent
listens to a conversation, and certainly no search of the defendant’s person,
house, papers or effects.
250
The only reason these “false friend” cases are hard
is because Katz’s privacy-focused “search” definition deprives the Court of
this obvious textual answer. After Katz, the Court crafted third-party doc-
trine to avoid labeling these clear non-searches, “searches.”
251
A textualist approach resolves other iterations of third-party doctrine
cases by revealing that there was a “search,” but not a search of the claimant.
For example, in Carpenter, the government conducted a “search” by compel-
ling Timothy Carpenter’s wireless carriers to turn over their papers for in-
spection.
252
Two of the three textual components of a Fourth Amendment
violation were satisfied: there was a “search” of “papers.” Critically, however,
the government searched the wireless carrier’s papers, not Carpenter’s pa-
242. On Lee v. United States, 343 U.S. 747, 757 (1952).
243. Colb, supra note 19, at 139.
244. Kerr, supra note 17, at 567–69.
245. See United States v. White, 401 U.S. 745, 752 (1971) (attempting to reconcile in-
formant cases with Katz).
246. See id.
247. This is because it is perfectly reasonable to expect that one’s trusted associates will
not divulge confidential communications. See White, 401 U.S. at 751. To avoid labeling such
conduct a “search,” the Court concocted thir d-party doctrine. See id.; supra note 241.
248. See supra Section II.A.
249. See, e.g., Rathbun v. United States, 355 U.S. 107, 107–08 (1957).
250. Cf. On Lee v. United States, 343 U.S. 747, 754 (1952) (rejecting suggestion that
“eavesdropping on a conversation, with the connivance of one of the parties,” can be analo-
gized “to an unreasonable search or seizure”). The textual analysis shifts if the government sur-
reptitiously plants a listening device on the defendant. See in fra note 299 (discussing tracking
devices on vehicles).
251. See supra note 241.
252. See supra Section I.A (explaining that compelling a party to produce its papers for
inspection constitutes a search); supra Section II.B (defining “papers”).
November 2019] Fourth Amendment Textualism 271
pers.
253
It is true that the government found information about Carpenter in
the carrier’s papers.
254
But the Fourth Amendment does not protect infor-
mation from disclosure. It restricts searches of papers, and its protections are
personal. There was no search of Carpenter’s papers—his Fourth Amend-
ment claim should fail.
255
(The task of identifying whose papers were
searched is discussed further below.)
This does not mean that a textualist approach leads to government vic-
tories whenever someone provides information to third parties. First, de-
fendants only lose protection when the government obtains information
from the third party. If the government obtained location information from
Carpenter’s own records, or searched Carpenter’s phone, that would consti-
tute a search of Carpenter’s papers and effects. It is irrelevant to the textual
inquiry that the government could also obtain the same information from a
third party. It is also worth noting that in all of these cases, the third party
can invoke its own Fourth Amendment rights to challenge the government’s
request.
256
Second, there will be times when the government does violate a suspect’s
Fourth Amendment rights by obtaining items from a third party. Third par-
ties often have access to a suspect’s papers or effects. That does not change
the textual analysis. Obtaining a suspect’s papers from a third party consti-
tutes a “search” (or “seizure”) of the suspect’s “papers,” and a potential
Fourth Amendment violation.
257
This complicates the government’s win in
the paradigmatic third-party doctrine case Miller v. United States.
258
Among
the records subpoenaed by the government in Miller were “copies of person-
al records that were made available to the banks for a limited purpose,” such
as “original checks and deposit slips” filled out by Mitchell Miller.
259
De-
pending on the precise facts, these items may properly be characterized as
Miller’s “papers.” If so, Miller should have been able to claim Fourth
Amendment protection. This is a critical point in an age of “cloud compu-
253. Carpenter v. United States, 138 S. Ct. 2206, 2212 (2018).
254. Id. at 2214.
255. Cf. id. at 2235 (Thomas, J., dissenting) (emphasizing that “the Government did not
search Carpenter’s property”); Smith v. Maryland, 442 U.S. 735, 741 (1979) (finding no
“search” when the phone company communicated the numbers dialed by a customer to the
police).
256. See Ohm, supra note 1, para. 34 (noting that “third parties serve as gatekeepers be-
tween the data and the police” and can “serve as a brake on unchecked police access to data,”
although “some fear that they are merely a speed bump”).
257. Cf. supra Section I.A (discussing indirect searches).
258. 425 U.S. 435 (1976).
259. Miller, 425 U.S. at 442. With respect to the records that the bank created and main-
tained, the analysis in that case tracks the conclusion here. Id. at 440 (“[T]he documents sub-
poenaed here are not respondent’s ‘private papers.’ . . . [T]hese are the business records of the
banks.” (quoting Boyd v. United States, 116 U.S. 616, 622 (1886))).
272 Michigan Law Review [Vol. 118:233
ting.”
260
Google may have access to all of my documents (including the Arti-
cle I am typing), but they are still my “papers.”
261
Even if the government ac-
cesses them through Google, the government, by examining these docu-
documents, conducts a search of my papers in violation of my Fourth
Amendment rights.
As the contrast between Carpenter and Miller reveals, a textual analysis
hinges on the nature of the item searched. Whose paper is it? As in current
Fourth Amendment standing doctrine, the answer turns on a commonsense
understanding of whose object was searched.
262
Thus, a person can claim a
Fourth Amendment violation for a search of a rented hotel room,
263
a search
of a borrowed car,
264
or a search of a house in which the person was an over-
night guest.
265
These answers do not turn on the applicable property laws or
statutory protections.
266
And they should not turn on “reasonable expecta-
tions of privacy.” Instead, whether a Fourth Amendment claimant can object
to a search of “their” house, papers, or effects should be a matter of straight-
forward textual application. Was the searched item (house, car, luggage, pa-
per) “theirs”?
267
A few examples from across the privacy spectrum illustrate the inde-
pendence of the proposed approach from contract, property, or, most im-
260. See United States v. Cotterman, 709 F.3d 952, 965 (9th Cir. 2013) (“With the ubiqui-
ty of cloud computing, the government’s reach into private data becomes even more problem-
atic.”); Couillard, supra note 40 (exploring complications to current “search” doctrine created
by cloud computing).
261. See Google Docs, G
OOGLE, https://www.google.com/docs/about/ [https://perma.cc
/22CG-3WX5] (offering service that allows users to store electronic documents on Google
servers).
262. See Minnesota v. Carter, 525 U.S. 83, 95–96 (1998) (Scalia, J., concurring) (explain-
ing that “this is not to say that the Fourth Amendment protects only the Lord of the Manor
who holds his estate in fee simple” and encouraging analysis based on “the common-law back-
ground” against which the Fourth Amendment was enacted).
263. Cf. United States v. Jeffers, 342 U.S. 48, 51–52 (1951) (ruling that entry and search of
hotel room violated Fourth Amendment).
264. Cf. Byrd v. United States, 138 S. Ct. 1518, 1531 (2018) (suggesting that a person who
borrows a rental car from the renter will have a “reasonable expectation of privacy” in that car).
265. See Minnesota v. Olson, 495 U.S. 91, 96–97 (1990); see also Mancusi v. DeForte, 392
U.S. 364, 367–68 (1968) (“[T]he Amendment does not shield only those who have title to the
searched premises. . . . [O]ne with a possessory interest in the premises might have standing.”).
266. Cf. Byrd, 138 S. Ct. at 1529 (holding unanimously that violation of rental contract
terms did not undermine vehicle driver’s Fourth Amendment standing). For a contrary view,
see Carpenter v. United States, 138 S. Ct. 2206, 2272 (2018) (Gorsuch, J., dissenting), which
argues that statutory rights in records created by third parties might create a property right
making government access a search of the customer. See also Slobogin, supra note 36, at 832
(highlighting circumstances where one might possess some statutory or even property rights to
data voluntarily transferred to a third party).
267. Cf. Fernandez v. California, 571 U.S. 292, 303 (2014) (explaining that reasonableness
of reliance on a person’s consent to a search should be evaluated based on “widely shared social
expectations” or “customary social usage” (quoting Georgia v. Randolph, 547 U.S. 103, 111,
121 (2006))).
November 2019] Fourth Amendment Textualism 273
portantly, statutory law. A document posted to Google Docs or Facebook
remains one of the poster’s “papers” regardless of the terms of service of the
Facebook or Google account, or any statute or regulation that might purport
to
ex
ti
ng
ui
sh
t
he
p
os
ter
’s
r
igh
ts.
I
f
po
li
ce
r
ev
ie
w
th
e
po
st
o
r
doc
um
en
t
through a request to Google or Facebook, they search the poster’s papers.
268
By contrast, a doctor’s notes regarding treatment of a suspect, kept by the
doctor, would be the doctor’s papers. This remains true even though a varie-
ty of laws provide the patient-suspect with substantial rights in the papers.
269
Consequently, only the doctor could lodge a Fourth Amendment objection
to their production. The point here is not that statutory protections don’t
matter. Statutes can and should provide privacy in certain records, even
against the government. The statutes must do so, however, by their own
terms, not by altering Fourth Amendment analysis. (Evidentiary privileges
may also ap ply.)
270
This tracks existing Fourth Amendment doctrine regard-
ing “searches,”
271
and more generally.
272
Admittedly the inquiry into whose object was searched reintroduce s a
degree of complexity in borderline cases, but that complexity is already a fac-
et of Fourth Amendment “standing” jurisprudence
273
and is a world away
from the amorphous nothingness of Katz. The typical analysis will be
straightforward. If the third party generated the records for its own use (as in
Carpenter), government access to the records constitutes a search of the third
party’s papers. Or if, like the phone number dialed in Smith v. Maryland, the
third party is the ultimate destination for the information, the transferred
information is that of the third party.
274
And because Fourth Amendment
rights are personal, only the third party can raise a Fourth Amendment ob-
jection to its production. If, on the other hand, the third party merely trans-
mits or stores the suspect’s papers or effects (for example, a cloud computing
268. In some circumstances a paper will belong to multiple persons. For example, if an
intended recipient of a post, such as a Facebook friend (or Google Docs coauthor), forwards
the post to police, the police “search” both persons’ “paper” when they review the post. The
search may be reasonable, however, based on the consent of any one of the persons. See, e.g.,
Fernandez, 571 U.S. at 303–04 (permitting occupant to consent to search of shared residence
over objection of absent co-occupant).
269. Medical records are heavily regulated, including a patient right of access and re-
strictions on disclosure. See The Privacy Rule, 45 C.F.R. § 164.502 (2016) (“A covered entity or
business associate may not use or disclose protected health information, except as permitted or
required by this subpart . . . .”).
270. See, e.g., N.Y.
C.P.L.R. 4504 (MCKINNEY 2019) (prohibiting doctors from disclosing
“any information which he acquired in attending a patient in a professional capacity”).
271. California v. Greenwood, 486 U.S. 35, 44 (1988) (rejecting suggestion that “concepts
of privacy under the laws of each State are to determine the reach of the Fourth Amendment”).
272. Virginia v. Moore, 553 U.S. 164, 176 (2008) (“[S]tate restrictions do not alter the
Fourth Amendment’s protections.”).
273. See Minnesota v. Olson, 495 U.S. 91, 100 (1990) (explaining that standing inquiry
proceeds by reference to “understandings that are recognized and permitted by society” (quot-
ing Rakas v. Illinois, 439 U.S. 128, 144 n.12 (1978))).
274. 442 U.S. 735, 743 (1979).
274 Michigan Law Review [Vol. 118:233
service), it is irrelevant, in assessing whether there is an actionable search,
that the government obtains the papers from the third party.
275
As the Court
explained in its 1877 analysis of the Fourth Amendment protection for let-
ters placed in the mail, “[t]he constitutional guaranty of the right of the peo-
ple to be secure in their papers against unreasonable searches an d seizures
extends to their papers, thus closed against inspection, wherever they may
be.”
276
A textualist approach generates a clear principle that differentiates cir-
cumstances where a suspect can invoke the Fourth Amendment to block
third-party transfers of information to the government and those where the
suspect cannot. The suspect ca n block transfers of the suspect’s own papers
to the government. The suspect cannot, however, block the third party’s
transfer of the third party’s papers to the government, even if those papers
contain information about the suspect. The text-based rule respects the third
party’s agency in determining the disposition of its own papers; and it cre-
ates space for consumers and developers to seek out and offer products that
take advantage of predictable Fourth Amendment protections. There may be
factual circum stances that challenge the rule’s application,
277
but the princi-
ple described above is a world apart from the caveated, ungeneralizable rules
the Supreme Court now generates, such as that “accessing seven days of
CSLI constitutes a Fourth Amendment search”
278
or that “longer term GPS
monitoring in investigations of most offenses impinges on expectations of
privacy.”
279
As the Court has recognized in other circumstances, the absence
of clarity as to what is permitted can be as much of a threat to libe rty as a
flawed rule.
280
III. APPLYING AN OLD TEXT TO NEW TECHNOLOGIES
The previous Parts set out an alternative framework for determining
whether a challenged government action constitutes a Fourth Amendment
“search.” There are two primary benefits to the framework. The first is legit-
imacy. As explained in the preceding Parts, the framework derives from, and
gives effect to, the text of the Fourth Amendment. It also parallels various
textually inspired lines of Fourth Amendment doctrine floating around the
275. But cf. Couch v. United States, 409 U.S. 322, 335 (1973) (concluding that the de-
fendant could not invoke the Fourth Amendment to challenge subpoena compelling account-
ant to produce defendant’s papers).
276. Ex parte Jackson, 96 U.S. 727, 733 (1877) (emphasis added).
277. See infra Part III.
278. Carpenter v. United States, 138 S. Ct. 2206, 2217 n.3 (2018).
279. Id. at 2215, 2220 (emphasizing that “five Justices agreed” with this proposition in
Jones); United States v. Jones, 565 U.S. 400, 430 (2012) (Alito, J., concurring) (“[T]he use of
longer term GPS monitoring in investigations of most offenses impinges on expectations of
privacy.”); id. at 415 (Sotomayor, J., concurring) (endorsing statement).
280. See Planned Parenthood of Se. Pa. v. Casey, 505 U.S. 833, 844 (1992) (“Liberty finds
no refuge in a jurisprudence of doubt.”).
November 2019] Fourth Amendment Textualism 275
byzantine jurisprudence.
281
This provides Fourth Amendment Textualism
with a clearer path to adoption than competing approaches, and the poten-
tial to attract support across the ideological spectrum.
282
The second benefit to Fourth Amendment Textualism is determinacy.
The preceding Parts discussed application of the proposed framework in a
variety of circumstances.
283
This Part provides more detailed applications
with a focus on complex, technologically advanced scenarios. Conventional
wisdom suggests that technological advances make straightforward Fourth
Amendment “search” analysis implausible. This Part challenges that wis-
dom. The point is not only to reveal the likely answers to some of the most
complex “search” questions but also to illustrate how a concrete test creates a
refreshing ability to predict outcomes—something lacking under Katz. The
discussion closes with a brief summary of “winners” and “losers” under a
textualist approach.
A. Searches of Persons
The Fourth Amendment prohibits unreasonable searches of persons.
284
These searches are critically important as they have the potential to be
uniquely abusive. A textualist approach unequivocally identifies searches of
the person. When police obtain someone’s DNA by scraping their cheek,
there is a search of the person. Similarly, taking someone’s fingerprints,
drawing blood, or conducting a breathalyzer, pat down, or strip search all
constitute searches of the person. These are all examinations of the body (as
an object) to uncover in formation. And in each scenario, there is no ques-
tion that the person searched possesses a cognizable Fourth Amendment
claim based on a search of “their” person. Contrast the above examples to a
scenario where the police obtain a suspect’s DNA or fingerprints from a
crime scene, or on a glass left at a restaurant. This might be a search of an
effect (the glass) or a person (the victim), but it is not a search of the sus-
pect’s person or effects and so would not implicate the suspect’s Fourth
Amendment rights.
285
Similar analysis applies to a comparison of crime-
281. See, e.g., supra Section II.D (discussing parallel to Fourth Amendment standing in-
quiry).
282. Ryan, supra note 24, at 1526–27 (“The academic debate, in short, is increasingly fo-
cused on what the text of the Constitution means, not whether the text should control.”); see
supra note 24.
283. See, e.g., supra Introduction (explaining that drug dog sniffs and thermal detection
devices directed at homes or effects are Fourth Amendment searches); supra Part II (finding
Fourth Amendment searches when the government accesses cloud storage, and some bank or
tax records as in United States v. Miller, 425 U.S. 435, 442 (1976), but no Fourth Amendment
searches in “false friends” cases, in Carpenter, and in intrusions to discover the off-season bur-
glar).
284. See supra Section II.B.
285. See supra Section II.C (explaining that discarded saliva, urine and dirt would not be
an “effect”). At least with respect to DNA analysis for solely identification purposes, see Mary-
land v. King, 569 U.S. 435, 464 (2013), it seems a stretch to suggest that analysis of discarded
276 Michigan Law Review [Vol. 118:233
scene DNA to samples contained in a government or public database, in-
cluding so-called “familial DNA” searches.
286
B. Public Surveillance and Tracking
Many of the novel challenges to Fourth Amendment doctrine hinge on
applications of public surveillance. Recordings and observations obtained
through public surveillance cameras may qualify under the “search” defini-
tion set out in Part I. But public surveillance typically does not constitute a
search of a “person,” “house,” “pa per,” or “effect.” The key for most applica-
tions is the distinction set out in Section II.B between a search that finds a
person and a search of a person. For example, after a bank robbery, the po-
lice might search through the footage recorded by a nearby surveillance
camera to uncover a suspect, but this is not a search of the person and so
does not trigger Fourth Amendment protection.
Satellite imagery and other technologically advanced means of public
surveillance are not Fourth Amendment “searches,” so long as all that is de-
tected is a person, vehicle, house, and the like. Finding or locating a house or
person is not the same as searching the house or person. The answers
change, however, once the technology does more than merely find a person
or vehicle. If, instead, the technology uncovers information about the detect-
ed person or item, such as a concealed weapon or the recent ingestion of
drugs, there is a search of the person that triggers Fourth Amendment pro-
tection. This makes the thermal detection of temperat ure patterns inside the
home, considered in Kyllo v. United States, a search of a home.
287
Authorities
reportedly now possess an analogous tool that detects the presence of people
inside a structure.
288
A text-focused approach would deem its use a “search”
of a home.
Similar analysis applies to more rudimentary surveillance tactics.
289
Pointing a flashlight or binoculars at a house to identify the address, or the
source of a strange noise, is not a search of the house. Standing on a porch
“to peer through your windows, in to your home’s furthest corners,” howev-
er, is a search of the house.
290
The distinction between the scenarios is intui-
hair, saliva, or urine would constitute a search of the “person” who discarded the biological
material.
286. See Erin Murphy, Relative Doubt: Familial Searches of DNA Databases, 109 M
ICH. L.
REV. 291, 297 (2010) (“Familial searching refers generally to the idea of looking in a DNA da-
tabase not for the person who left the crime-scene sample, but rather for a relative of that indi-
vidual.”).
287. 533 U.S. 27, 29 (2001). For further discussion of the case, see supra Introduction.
288. See Brad Heath, New Police Radars Can ‘See’ Inside Homes, USA
TODAY (Jan. 19,
2015, 6:26 PM), https://www.usatoday.com/story/news/2015/01/19/police-radar-see-through-
walls/22007615/ [https://perma.cc/5ZYY-A5CT].
289. Cf. United States v. Lee, 274 U.S. 559, 563 (1927) (“[N]o search on the high seas is
shown. The testimony of the boatswain shows that he used a searchlight. It is not shown that
there was any exploration below decks or under hatches.”).
290. Florida v. Jardines, 569 U.S. 1, 12 (2013) (Kagan, J., concurring).
November 2019] Fourth Amendment Textualism 277
tive, sensible, and fits the definition provided throughout this Article. The
police officer who observes the house’s exterior, and even what is displayed
in a window, gleans only what is already apparent.
291
The officer does no t
conduct an “examination” of the house to “uncover” info rmation. She looks
at the house, but does not “search” it. The officer on the porch using a flash-
light or binoculars to peer into the house examines the house to uncover in-
formation, conducting a Fourth Amendment “search.”
Similarly, surveillance of vehicles, including the use of license plate read-
ers,
292
will typically not be a search for Fourth Amendment purposes. Read-
ing a license plate does not uncover any information. A license plate displays
a sequence of letters and numbers that is immediately apparent to anyone
who views it. Consequently, viewing that information is not a search of the
license plate.
293
Using the knowledge obtained to then generate additional
information (for example, comparing the number to a database of license
plates) is also not a Fourth Amendment search because it is, at most, a search
of a database, not a search of the suspect’s effect.
294
An analysis of tracking devices provides a further illustration of the me-
chanics of a textualist approach. The most conventional means of tracking is
visual surveillance. When the police tail suspects (“follow that car!”) to see
where they go, there is no Fourth Amendment “search.” Observing the car’s
movements in public spaces is not a search of the vehicle.
295
Electronic track-
ing devices ch ange the analysis, leading to a Fourth Amendment search in
almost every conceivable case.
296
Imagine the police affix a tracking device to
a suspect’s vehicle while it is parked in a parking lot, as in United States v.
Jones.
297
During the affixing process, the government agents observe the
parked vehicle and, perhaps, wave ironically as the suspect drives off. These
observations, like those described immediately above (“follow that car!”) do
not constitute a search. The agents are merely observing what is already ap-
parent, and have not (thus far) uncovered any information. Things change
once the car is out of view, however, and the agents obtain further infor-
mation about the car’s location through the tracking software. The tracking
device becomes a means by which the agents examine an object (the vehicle)
291. See supra Section II.A (defining “search” as an “examination of an object or space to
uncover information” (emphasis added)).
292. See ACLU Found. v. Superior Court, 400 P.3d 432, 434 (Cal. 2017) (describing “au-
tomated license plate reader (ALPR) technology in order to locate vehicles linked to crimes
under investigation”).
293. See supra Section II.A.
294. See supra Section II.A.
295. See supra Section II.A (defining search).
296. This reverses the Supreme Court’s “beeper cases,” which held that surreptitiously
planting a tracking device among a suspect’s effects did not constitute a search unless the
tracker revealed the suspect’s location in a private residence. See United States v. Karo, 468 U.S.
705, 713 (1984); United States v. Knotts, 460 U.S. 276 (1983); supra note 171.
297. 565 U.S. 400, 403 (2012).
278 Michigan Law Review [Vol. 118:233
to uncover information (the vehicle’s subsequent movements).
298
Since the
information obtained is no longer apparent (to them), the officers’ use of a
tracking device to uncove r that information is a Fourth Amendment
search.
299
Relatedly, if the police access the computer system inside a modern car
and download information, such as the car’s speed and location, there is also
a “search.” In this scenario, the police are most obviously searching the com-
puter connected to the vehicle, and a computer is an “ effect.”
300
The same
analysis would apply if the police sought past locations by hacking into Fitbit
watches, iP hones, or laptop computers—all “effects.”
301
A complaining party
with a claim to the hacked computer will be able to establish a Fourth
Amendment violation.
C. Intercepting Electronic Signals and the Internet of Things
Another crop of scenarios where new technology pushes Fourth
Amendment “search” doctrine concerns electronic signals streaming
through the air. These signals can reveal otherwise hidden information. For
example, police currently employ a technology colloquially referred to as a
“StingRay” to trigger and then intercept signals that identify the cell phones
operating in a specified area.
302
This constitutes a Fourth Amendment
298. It is true that the government could obtain at least some of this information through
a non-search (by physically observing the vehicle’s movements in public spaces), but that is
irrelevant when, as here, the government obtains the information in a different manner. The
question for Fourth Amendment Textualism, in contrast to Katz’s privacy-focused approach, is
whether the police conducted a search, not whether they could have obtained the same infor-
mation without one. See supra Section II.A; supra note 171.
299. This conclusion may seem to be in tension with the government’s ability (described
above) to obtain analogous information about a car’s location through satellite imagery, public
surveillance cameras, or traditional physical surveillance without triggering the Fourth
Amendment. It is certainly possible that government conduct meeting these descriptions will
constitute a “search.” But in the public surveillance examples, police search a space (public
roads and the like) to uncover information (a car’s location). That is a “search” of the public
spaces that finds a car. By contrast, in the electronic tracking example, the police do not search
a public space to find a car. They uncover information about the car by attaching a device to
the car itself. This seems most fairly characterized as a search of the car—an examination of a
constitutionally protected object to uncover information. Following this reasoning, if the po-
lice attach a tracking (or listening) device to a person and use that device to obtain otherwise
hidden information (the person’s utterances or vital signs), there is similarly a search of that
person (an examination of a person to uncover information).
300. See supra Section II.C. This analysis could also be relied on to reach the conclusion
(noted immediately above) that tracking devices attached to a suspect’s property constitute
Fourth Amendment searches.
301. See supra Section II.C.
302. See State v. Copes, 165 A.3d 418, 422–23 (Md. 2017) (discussing technology); Steph-
anie K. Pell & Christopher Soghoian, A Lot More than a Pen Register, and Less than a Wiretap:
What the StingRay Teaches Us About How Congress Should Approach the Reform of Law En-
forcement Surveillance Authorities, 16 Y
ALE J.L. & TECH. 134, 145–46 (2013) (defining a Sting-
Ray as “a surveillance device that . . . tricks all nearby phones and other mobile devices into
November 2019] Fourth Amendment Textualism 279
“search” under a textualist approach. The phone is an “effect,” and the
StingRay examines the phone to uncover information that is not already ap-
parent (specifically, the phone’s unique serial number). The information un-
co
ve
re
d
is
m
in
im
al
,
bu
t
a
sm
al
l
sea
rc
h
is
s
ti
ll
a
se
arc
h.
303
A similar analysis
would apply to police requests to a wireless carrier to “covertly ‘ping’ a sub-
scriber’s phone in order to locate [the subscriber] when a call is not being
made.”
304
Much scholarly excitement surrounds the Internet of Things (IoT).
305
This buzz-phrase loosely defines various forms of home electronic devices
that interact wirelessly to make life easier.
306
For example, a “smart” refr iger-
ator might sense it is out of milk and then, at the owner’s request, notify
Amazon to deliver a new carton. If the police intercept the notification, they
have intercepted the electronic equivalent of the owner’s papers—a note sent
to the store requesting more milk.
307
By accessing that note, the government
conducts a Fourth Amendment search. Also, if police access the information
through an Amazon Alexa sitting on the owner’s kitchen counter, they
search the owner’s effect (the Alexa). If, instead, Amazon keeps a record of
all of a customer’s requests for billing purposes, and the police obtain that
information through a subpoena to Amazon, they conduct a search of Ama-
zon’s papers. Or, if the fridge communicates information to Amazon with-
out customer involvement to enable product improvements, police can
intercept that signal or obtain it from Amaz on without infringing on the
customer’s (as opposed to Amazon’s) Fourth Amendment rights. This in-
formation is not the customer’s papers. Parallel analysis applies throughout
the IoT.
The same framework applies to the interception of text messages and
email.
308
Imagine Walter White regularly texts Jesse Pinkman.
309
If the gov-
ernment issues a subpoena to Verizon seeking to intercept the texts, White’s
Fourth Amendment rights are implicated. Verizon may have access to the
text message, but it is White’s message (his “papers”) that Verizon is merely
transporting. The result is a search of White’s papers, which are protected by
identifying themselves (by revealing their unique serial numbers) just as they would register
with genuine base stations in the immediate vicinity”).
303. Cf. Arizona v. Hicks, 480 U.S. 321, 325 (1987) (“A search is a search, even if it hap-
pens to disclose nothing but the bottom of a turntable.”).
304. Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasona-
ble Standards for Law Enforcement Access to Location Data that Congress Could Enact, 27
BE
RKELEY TECH. L.J. 117, 131 (2012).
305. See, e.g., Ferguson, supra note 191.
306. Id. at 812.
307. See supra Section II.B.
308. See discussion supra Introduction and Part II.
309. These are characters from the show Breaking Bad. See Breaking Bad, AMC,
https://www.amc.com/shows/breaking-bad/ [https://perma.cc/YMT4-LNCV]. Really, it is
quite good.
280 Michigan Law Review [Vol. 118:233
the Fourth Amendment, “wherever they may be.”
310
Notably, the intercep-
tion of airborne signals relaying White and Pinkman’s voice conversations
would not be protected through this analysis since the oral communication
would not fairly be characterized as White’s “papers.” But, of course, the in-
terception of voice calls is restricted by a longstanding federal statute, ren-
dering this gap a theoretical rather than a practical concern.
311
As in the Amazon Alexa example used above, the hardest questions in-
volve requests directed at the recipients of a suspect’s communications. For
example, the government might issue a subpoena to Pinkman seeking all his
text messages and by doing so obtain messages sent by White. This is not a
search of White. White communicated confidential information to Pinkman
via text, but absent additional facts, it seems strained to view text messages in
the possession of their intended recipient as continuing to be part of the
sender’s papers. (Just as it would be odd to view information conveyed orally
to Pinkman as somehow belonging to White.) Once Pinkman received the
text messages that were intended for him, they became part of Pinkman’s
papers.
312
As a result, the government searches Pinkman (or more precisely,
his “papers”) when it obtains this text from him. The same logic would apply
in less technologically sophisticated scenarios like police inspections of
curbside trash. Trash contained in a bin on one’s property would remain the
person’s “effects.” Once it is collected by the trash hauler, however, the trash
becomes the “effects” of the hauler. A suspect could raise a Fourth Amend-
ment objection to a search of the trash on the suspect’s property but loses
that objection once the trash hauler carts the refuse away or deposits it in a
landfill.
313
* * *
While no article can cover every possible “search” scenario, this is as ro-
bust a catalogue of examples as can be expected. Most proposals hint at new
directions or considerations. This Article attempts (perhaps foolishly) to
provide solutions to the past fifty years of search scenarios, plus the next ten
years or so. The point is not to reveal winners and losers, or to put the courts
310. Ex parte Jackson, 96 U.S. 727, 733 (1877).
311. See supra note 101 and accompanying text. To avoid this result, White could tran-
scribe his thoughts and transmit the resulting “papers” to Pinkman. This seemingly alarming
ability to “game” the outcome is a feature, not a bug. The doctrine’s ex ante clarity should cre-
ate the ability to tailor one’s practices to obtain Fourth Amendment protection.
312. Cf. Smith v. Maryland, 442 U.S. 735, 743–44 (1979) (finding that telephone users do
not have Fourth Amendment rights in the phone numbers they dial because they know they
are conveying the phone number to the phone company); Kerr, supra note 17, at 561, 582
(“The sender has Fourth Amendment rights in the letter during transmission, but once it ar-
rives at its destination, those rights disappear.”).
313. But cf. California v. Greenwood, 486 U.S. 35, 41 (1988) (“[S]ociety would not accept
as reasonable respondents’ claim to an expectation of privacy in trash left for collection in an
area accessible to the public . . . .”).
November 2019] Fourth Amendment Textualism 281
out of business. The hope is to show that Fourth Amendment Textualism
asks clearer questions and provides clearer answers than the Katz test, leav-
ing fewer opportunities for subjectivity to infiltrate the doctrine. The cost of
pr
ovi
di
ng
a
ct
ua
l
ans
we
rs
t
o
di
fficu
lt
qu
es
ti
on
s
is
t
ha
t
i
t
in
vit
es
di
s
agre
emen
t.
Judges and scholars will surely contest not only the proposed framework but
also conclusions as to its proper application in particular scenarios. Disa-
greement is not fatal; it is the reason we have courts. And keep the bench-
mark in mind. A textualist approach is not perfect; it doesn’t have to be. It
simply needs to outperform Katz’s reasonable expectations of privacy test in
important respects. And when it comes to clarity and determinacy, this Sec-
tion tries to sh ow that it meets that challenge.
More determinacy should lead to greater consistency in application
across courts, both state and federal, and over time. Consistency and pre-
dictability are important features of Fourth Amendment doctrine which
seeks to guide not just court decisions but police investigative activity as
well.
314
Clear principles are especially important when the Supreme Court
only takes one or two “search” cases each year, leaving most of the work to
the lower courts. In addition, determinacy provides space for legislatures and
state courts (interpreting state constitutions) to add protections when they
perceive shortcomings in Fourth Amendment protections. And clear rules
also allow consumers and product developers to adjust their preferences and
products.
There remains the question of desirability. Many readers will evaluate
Fourth Amendment Textualism on policy grounds—who “wins,” who “los-
es.” Even though I think this is the wrong metric, I also think the methodol-
ogy discussed here fares surprisingly well. It does not protect everything, but
it cleanly and unequivocally protects the things the Constitution sought to
protect. Fourth Amendment Textualism reinforces protections for physical
searches, such as government intrusions upon the body, the home, docu-
ments, vehicles, and luggage. It also protects against intrusions upon peo-
ple’s modern information-rich possessions—electronic devices, phones,
computers. And it strengthens certain protections in the online world by un-
equivocally protecting a person’s electronic papers regardless of wh ere those
items are located. This is critical as data increasingly migrates from personal
computers to third-party servers and the cloud.
315
Facebook posts, Google
Docs, text messages, and email all continue to receive protection as the au-
thor’s “papers” “wherever they may be”—an enhancement of the privacy
protection provided by Katz. As already discussed, Fourth Amendment Tex-
tualism does not protect against public surveillance. To the extent surveil-
314. See, e.g., New York v. Belton, 453 U.S. 454, 458 (1981) (“Fourth Amendment doc-
trine, given force and effect by the exclusionary rule, is primarily intended to regulate the po-
lice in their day-to-day activities . . . .”) (quoting Wayne R. LaFave, “Case-By-Case
Adjudication” Versus “Standardized Procedures”: The Robinson Dilemma, 1974 SUP
. CT. REV.
127, 142)).
315. See Couillard, supra note 40, at 2216 (exploring complications to current “search”
doctrine created by cloud computing).
282 Michigan Law Review [Vol. 118:233
lance cameras observe people without intruding upon “persons, houses or
effects,” as is widespread in European cities like London,
316
Fourth Amend-
ment Textualism provides no recourse. Whether Katz does so is in flux.
317
Another potential distinction arises in third-party scenarios. While Fourth
Amendment Textualism protects a suspect’s papers—even those held by
third parties—it does not empower a suspect to prohibit the third party from
turning over the third party’s own papers to the government. Katz, as ap-
plied in Carpenter, does just that. Finally, while Fourth Amendment Textual-
ism protects against the interception of emails and texts, it does not protect
against the interception of pings and other automated electronic signals
when these signals cannot fairly be characterized as the emitting device own-
er’s “papers” or “effects.” Katz might provide protection.
That’s the promised rough summary of winners and losers. In evaluating
the summary, keep in mind that Fourth Amendment Textualism offers two
more benefits that Katz cannot match: certainty and legitimacy. Fourth
Amendment Textualism can unflinchingly protect a core of constitutionally
protected areas, while leaving other areas to policy arguments and legislative
debate. And it follows neatly from the Fourth Amendment’s text. In the long
run, this may be the most concrete and stable form of privacy protection the
Fourth Amendment can offer.
C
ONCLUSION
Current Fourth Amendment “search” jurisprudence frees the Supreme
Court to reach the “right” result in each case. The sum total of all this free-
dom, however, is an unstable, unpredictable, and unprincipled Fourt h
Amendment jurisprudence untethered to the words of the Constitution. The
Court’s search cases look like its obscenity jurisprudence
318
: the Court knows
a “search” wh en it sees one. This jurisprudence is hard to support even from
a pure policy perspective. A doctrine of uncertainty is toxic for police and
citizens who do not know what the Constitution permits, and lower courts
who receive little guidance on what to tell them. Uncertainty about what the
Fourth Amendment protects also slows state and federal legislative responses
that could supplement constitutional protections. Legislators are under-
standably hesitant to intervene when it is unclear both what protections are
needed and what investigative conduct can be authorized.
319
316. See Nick Taylor, Closed Circuit Television: The British Experience, 1999 STAN. TECH.
L. REV. 11 (describing the widespread use of public surveillance in London and beyond).
317. See Carpenter v. United States, 138 S. Ct. 2206, 2216 (2018) (explaining that the per-
vasive “ability to chronicle a person’s past movements” requires a different type of Fourth
Amendment analysis).
318. See Jacobellis v. Ohio, 378 U.S. 184, 197 (1964) (Stewart, J., concurring) (“I know it
when I see it.”).
319. Cf. Henry P. Monaghan, Foreword: Constitutional Common Law, 89 H
ARV. L. REV.
1, 31 (1975) (explaining that congressional action is unlikely “unless a problem area is clearly
identified as one in which Congress may prescribe a solution”).
November 2019] Fourth Amendment Textualism 283
The good news is that the jurisprudence is ripe for change. The failings
of the “reasonable expectation of privacy” test are no secret. Supreme Court
justices, privacy advocates, and law enforcement seem frustrated with the
of
t-di
sp
arag
ed
“
re
as
on
abl
e
ex
pe
ct
at
io
n
of
p
riva
cy
”
tes
t
an
d
it
s
ev
en
m
ore
unpopular cousin, “third-party doctrine.”
320
After almost a half century of
Katz, the Supreme Court is in the market for an alternative.
This Article contends that the best alternative is the simplest. The Su-
preme Court can jettison Katz and all of the doctrinal baggage that case
spawned. In its place, the justices can apply Fourth Amendment Textualism,
a methodology that gives “search” its common meaning and limits the
Amendment’s protection to searches of claimants’ (“their”) “persons, houses,
papers, and effects.” This approach will not please everyone. And it too will
require judgment calls. But Fourth Amendment Textualism infuses the ju-
risprudence with a heavy dose of legitimacy and determinacy, while safe-
guarding a precious core of constitutionally protected spaces against
government abuse.
320. See Carpenter, 138 S. Ct. at 2246 (Thomas, J., dissenting) (“Because the Katz test is a
failed experiment, this Court is dutybound to reconsider it.”); id. at 2267 (Gorsuch, J., dissent-
ing) (seeking “another way” to approach “search” questions); United States v. Jones, 565 U.S.
400, 417 (2012) (Sotomayor, J., concurring) (questioning third-party doctrine); supra Section
I.C.
284 Michigan Law Review [Vol. 118:233
