Kentucky Law Journal Volume 107 Issue 2 Article 2 2018 Decentralizing Fourth Amendment Search Doctrine Michael J. Zydney Mannheimer Northern Kentucky University Follow this and additional works at: https://uknowledge.uky.edu/klj Part of the Constitutional Law Commons, and the Fourth Amendment Commons Right click to open a feedback form in a new tab to let us know how this document benefits ou.y Recommended Citation Mannheimer, Michael J. Zydney (2018) "Decentralizing Fourth Amendment Search Doctrine," Kentucky Law Journal: Vol. 107 : Iss. 2 , Article 2. Available at: https://uknowledge.uky.edu/klj/vol107/iss2/2 This Article is brought to you for free and open access by the Law Journals at UKnowledge. It has been accepted for inclusion in Kentucky Law Journal by an authorized editor of UKnowledge. For more information, please contact [email protected]. Kentucky Law Journal VOLUME 107 2018-2019 NUMBER2 ARTICLES DECENTRALIZING FOURTH AMENDMENT SEARCH DOCTRINE MichaelJ. Zydney Mannheimer' ABSTRACT In examining the threshold question for Fourth Amendment analysis-what constitutes a search?-both courts and commentators have generally premised their analysis on a sharp dichotomy between an approachbased on trespassto real or personal property, on the one hand and one grounded in non-property-based expectations of privacy, on the other. The trespass-basedregime seemed to have given way in 1967 to the "reasonable expectation of privacy" standard But the resurgence of a trespass-basedapproach in recent Supreme Court cases has served to highlightthe supposed distinction between the two methodologies. When subjected to close scrutiny, the dichotomy between the two approaches becomes highly questionable. Whether analyzed in terms of trespass or reasonable expectations of privacy, the question in close cases concerning whether government conduct constitutes a Fourth Amendment search comes down to the same essential touchstone: social norms governing security in one's person and property from intrusion by others. Those social norms inform both when a particular expectation of privacy should be deemed reasonable and when an incursion on property should be deemed a trespass. This social-norm-based analysis of whether a Fourth Amendment search has occurred should not be surprising. The common law governing rights to security in one's person and property stems from longstanding custom, which is inextricably linked with social norms: the practices of a people become their social norms, which harden into custom, and custom in turn evolves into enforceable rights and interests that sometimes, though not always, find expression in positive law. Thus, expectations of privacy and trespass constitute, not two distinct tests, but rather two points on the same evolutionary scale. Our notions of trespass have as their touchstone the ' Professor of Law, Salmon P. Chase College of Law, Northern Kentucky University. I thank the following for their helpful comments on earlier iterations of this Article: Will Baude, Will Berry, Russell Christopher, Brenner Fissell, Steve Henderson, Craig Konnoth, James Stern, Matt Tokson, and participants of the 2016 CrimFest! Conference, the 2017 Federalist Society Annual Faculty Conference, and workshops at the University of Kentucky College of Law and the Salmon P. Chase College of Law, Northern Kentucky University. 169 170 KENTUCKY LAW JOURNAL VoL 107 very same social norms thatform the backbone of the reasonable expectation of privacy test. One can articulate a uniform meaning of "search" irrespective of whether we are operating under a "trespass" or a "reasonableexpectation of privacy" model. A Fourth Amendment search occurs when, for the purpose of gathering information, government agents act contrary to law, broadly conceived-that is, law in whatever stage of evolutionary development-providing us with security vis-a-vis private actors in our "persons, houses, papers, and effects." A violation of positive law thatfits this definition is sufficient but not necessary to constitute a Fourth Amendment search; a violation of social norms thatfits this definition, even where the norms have not yet gelled into positive law, should also be considered a search. But because law, in all its manfestations, often differs by jurisdiction, the question whether a Fourth Amendment search has occurred might be answered dsferently in dfferent parts of the country, and perhaps even in diferent parts of the same State. 2018-2019 DECENTRALIZING FOURTH AMENDMENT SEARCH DOCTRINE 171 TABLE OF CONTENTS A BSTRACT.......................................................................................................... 169 TABLE OF CONTENTS ......................................................................................... 171 INTRODUCTION ................. ...... .................. ............................. 172 I. FOURTH AMENDMENT SEARCH DOCTRINE(S) ............................ 174 A. From Olmstead to Katz....................................................................... 174 B. Katz's Reasonable Expectation of Privacy Test................................... 178 C. The "Resurgence" of Trespass............................................................ 184 II. A POST-JONES SYNTHESIS: SOCIAL NORMS GOVERNING SECURITY AGAINST PRIVATE INTRUSIONS AS THE TOUCHSTONE.................................. 186 A. An OriginalistApproach to the FourthAmendment Search Question... 187 B. The Common Law as Custom and Usage ............................................. 190 i. The Traditional View of English Common Law as Custom ......... 190 ii. The Democratic Foundations of Custom as Law........................... 192 iii. The Transformation from Practice to Law.................................... 194 C. The Persistenceof Social Norms as PrimordialLaw............................ 199 D. Everything Old is New Again: The Trespass Test as the Expectations Test ................................................................................ 204 III. Two IMPLICATIONS OF THE POST-JONES SYNTHESIS: UNIFICATION AND DECENTRALIZATION ................................................................................... 209 A. Unfying the Fourth Amendment Search Inquiry..... ........... 209 B. Decentralizingthe Fourth Amendment Search Inquiry ........................ 213 CONCLUSION ................. ............................... .................................. 219 172 KENTCKY LAW JOURNAL Vol 107 INTRODUCTION According to the conventional wisdom, the doctrine on the threshold question of Fourth Amendment inquiry-what is a "search?"-has wavered back and forth between a property-based "trespass" approach and a privacy-based "expectations" approach. On this view, prior to the U.S. Supreme Court decision in Katz v. United States in 1967, courts determined whether a Fourth Amendment search had occurred with reference to common-law notions of trespass: a search had occurred if, but only if, government agents committed a physical intrusion into one of the four interests enumerated in the Amendment-persons, houses, papers, or effects.2 In Katz, the Court reversed course, seemingly burying the trespass approach and creating an altogether new methodology, the "reasonable expectation of privacy" test.' Under this approach, a Fourth Amendment search occurs if, but only if, government agents infringed upon a person's expectation of privacy, and if society is prepared to consider that expectation a reasonable one.' In United States v. Jones, in 2012, the Court revived the trespass test, so that a Fourth Amendment search occurs as long as either test is satisfied.' This is the conventional wisdom. As a historical matter, the conventional wisdom is questionable.' But more importantly, this sharp dichotomy between the two approaches is conceptually flawed. The common law, upon which the trespass approach is based, is itself only the end product of centuries of accumulation of custom which has created enforceable rights and interests, even before those rights and interests are expressed in statutory or decisional form as positive law. Custom, in turn, is simply a hardening of social norms that reflect the repeated practices of a people forced to navigate the complex relationships between individual and community. And it is those very same social norms that form the backbone of the reasonable expectation of privacy test. Thus, questions about both reasonable expectations of privacy and unwanted physical intrusions have at their root social conventions governing how individuals interact with one another and the extent to which we ought to respect each other's interest in security against intrusions on our persons and property. Sometimes these social conventions have ripened into positive law and sometimes they have not. When they have, they are expressed in the common law of trespass (among other areas), on which the Court's physical intrusion approach hinges. When they have not, these social conventions may remain at the level of social norms, which are at the heart of the reasonable expectation of privacy approach. And there is a vast, blurry middle ground, where social norms have evolved into enforceable rights and 2 See Katz v. United States, 389 U.S. 347, 353-54 (1967). ' See id at 360 (Harlan, J. concurring). Although the standard stems from Justice Harlan's concurrence in Katz, the Court quickly adopted it See Terry v. Ohio, 392 U.S. 1, 9 (1968). 4 Katz, 389 U.S. at 361 (Harlan, J., concurring). s United States v. Jones, 565 U.S. 400, 409-11 (2012). 6 See generally