Michigan Law Review Volume 118 Issue 2 2019 Fourth Amendment Textualism Jeffrey Bellin William & Mary Law School Follow this and additional works at: https://repository.law.umich.edu/mlr Part of the Criminal Procedure Commons, Fourth Amendment Commons, Science and Technology Law Commons, and the Supreme Court of the United States Commons Recommended Citation Jeffrey Bellin, Fourth Amendment Textualism, 118 MICH. L. REV. 233 (2019). Available at: https://repository.law.umich.edu/mlr/vol118/iss2/3 https://doi.org/10.36644/mlr.118.2.fourth This Article is brought to you for free and open access by the Michigan Law Review at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in Michigan Law Review by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. 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 Casual 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. 233 234 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 States 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 States, 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 Fourth Amendment and the Seizure of Intangible Property, 2008 STAN. 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 parties8 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 STAN. 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 HARV. L. REV. 205, 222 (2018) (not- ing that the “Carpenter Court