Archive | Fourth Amendment

Three Questions Raised By The Trespass Test in United States v. Jones

Today’s decision in United States v. Jones holds that the Katz test is not the exclusive test for what is a Fourth Amendment search: When the government conducts a common-law trespass into a person, house, paper, or effects, that trespass is a search if it is done “for the purpose of obtaining information.” Three questions come to mind about what this means:

1) What kind of “trespass” counts for purposes of this test? As Blackstone noted in his Commentaries (Vol. 3. Ch 12), at common law there were two understandings of “trespass” — a broad one and a narrow one. Blackstone wrote:

Trespass, in its largest and most extensive sense, signifies any transgression or offence against the law of nature, of society, or of the country in which we live, whether it relates to a man’s person or his property. Therefore, beating another is a trespass, for which (as we have formerly seen) an action of trespass vi et armis in assault and oattery will lie; taking or detaining a man’s goods are respectively trespasses, for which an action of trespass vi et armis, or on the case in trover and conversion, is given by the law: so also, non-performance of promises or undertakings is a trespass, upon which an action of trespass on the case in assumpsit is grounded: and, in general, any misfeasance or act of one man whereby another is injuriously treated or damnified is a transgression or trespass in its largest sense: for which we have already seen(a) that whenever the act itself is directly and immediately injurious to the person or property of another, and therefore necessarily accompanied with some force, an action of trespass vi et armis will lie; but, if the injury is only consequential, a special action of trespass on the


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Why Did Justice Sotomayor Join Scalia’s Majority Opinion in Jones?

One of the puzzles of Jones is how Scalia’s opinion ended up being the majority opinion of the Court, while Justice Alito’s view is merely a concurring opinion. The puzzle is that the apparent 5th vote for the Jones majority, from Justice Sotomayor, wrote a concurrence strongly hinting that she would accept a far broader rationale something akin to that in Justice Alito’s concurrence in the judgment. The question is, why sign on to Scalia’s opinion instead of Alito’s?

There are a bunch of possible reasons, of course, but one possibility involves the timing of circulated drafts. The Chief assigned the majority opinion to Scalia, who had floated his theory of the case at oral argument. Imagine Scalia circulated his majority opinion quickly, and Sotomayor joined it pretty soon after that. Some time passed, and then Justice Alito sent around his concurring opinion. Justice Alito’s opinion is mostly a criticism of Scalia’s approach, but it then has a relatively brief pro-privacy section at the end that addresses questions not reached by Scalia’s opinion. Imagine Sotomayor read Alito’s opinion and really liked that part of Alito’s opinion. But she had already signed on to Scalia’s draft majority, and it’s considered bad form to un-join an opinion after signing on. It’s especially bad form if you followed the common practice of asking for a few changes to the draft majority opinion as a condition of signing it. Also, while Alito hinted at how he would decide the case, that section is relative brief and quite vague. So Sotomayor might have stuck with Scalia’s opinion as a matter of propriety and good internal court relations, and then written her solo concurring opinion indicating her agreement with much (although by no means all) of Alito’s opinion.

Of course, that’s just one possibility among many. […]

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Are State Court Immunities for Fourth Amendment Torts Unconstitutional?

In a response to my recent post, Originalism and Civil Damages for Fourth Amendment Violations, Michael Ramsey argues at The Originalism Blog that there is a way to square originalist opposition to the exclusionary rule with originalist embrace of doctrines cutting back on Fourth Amendment civil remedies. The basic idea is that the civil causes of action such as Bivens and Section 1983 that the Court often interprets are not the true descendants of the civil causes of actions at common law, but rather are special federal causes of action that exist in addition to those remedies. At common law, the law of search and seizure was a defense to a tort suit. If the King’s officials entered a home with a warrant, the homeowner could sue for trespass, and the valid warrant would serve as an affirmative defense. Ramsey argues that Section 1983 and Bivens are different causes of action that go beyond this role:

Bivens claimed a basis in the Constitution, but it didn’t arise from the Constitution’s original meaning; an originalist would more likely think of Bivens as a creation of federal common law (which doesn’t necessarily mean it was illegitimate, just that it wasn’t constitutionally required). That explains, though, why the Court in cases like Anderson felt free to engage in what was (as Professor Kerr suggests) basically common law rulemaking rather than originalism. It was common law rulemaking, because all of Bivens, from which Anderson arose, is sub-constitutional federal common law.

It’s important to distinguish Anderson from two other sorts of suits for Fourth Amendment violations: (1) Fourth Amendment (really, Fourteenth Amendment) claims against state and local officials brought under the federal statute 42 U.S.C. 1983 (Section 1983 claims), and (2) state law claims (e.g., for trespass or battery) brought against federal, state or


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Originalism and Civil Damages for Fourth Amendment Violations

Originalists are often opposed to the exclusionary rule, the rule that evidence obtained in violation of the Fourth Amendment cannot be used in court. The exclusionary rule was made up by 19th and 20th century judges, the argument runs. At common law, the remedies for violations of search and seizure law were civil damages against the officers, not exclusion of evidence. Because the Fourth Amendment is widely recognized to have adopted and endorsed those cases, such as Entick v. Carrington (1765), the exclusionary rule must be abolished. It simply is not part of the original Fourth Amendment remedies observed in cases like Entick.

I’m not entirely sure that’s correct, but let’s assume it is. Here’s my question: If you’re an originalist, does that mean that you think the Constitution guarantees the civil remedies that existed at common law for search and seizure violations? Put another way, can modern judges change the civil remedies that were available at common law for constitutional violations? Or is there a civil remedies scheme that must be available under an originalist understanding of the Fourth Amendment?

I ask that in part because I often encounter a very strange disconnect when originalists discuss the exclusionary rule versus civil damages as a means of enforcing the Fourth Amendment. In discussing the exclusionary rule, most originalists contend that the Fourth Amendment can only be enforced as it was at common law. On the other hand, in discussing civil damages, self-described originalists often seem to go all living constitutionalist: Suddenly the scope of civil damages is just a question of policy, not originalism, and often that means inventing new limitations on damages or following Warren Court-era precedents that did so. I’m curious: Is there a genuine way to reconcile these two sets of beliefs?

Consider the […]

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Fourth Circuit Overturns Conviction Because Officer Used A Knife to Remove the Crack Tied Around An Arrestee’s Private Parts

Kevin Walsh flags a very unusual Fourth Amendment case out of the Fourth Circuit that reaches a rather surprising holding: The police violate the Fourth Amendment, justifying suppression of the evidence, when the police use a knife to remove drugs tied around a suspect’s private parts during a search incident to arrest. The case is United States v. Edwards.

First, the facts. For fans of The Wire cue the music — the case occurred in Baltimore in the Northern District. The police obtained a search warrant for a known drug dealer, Joseph Edwards, who was quite familiar to the officers. Edwards had earlier illegally brandished a weapon in front of two women. The police knew the neighborhoods where Edwards hung out, so they went there at night and saw him and placed him under arrest based on the authority of the warrant. Before putting Edwards in the police van to be transported to the station, the officers decided to check his crotch for guns or drugs. One of the officers testified that this was a common practice: ” You know, it’s unpleasant for everybody involved. But if you have reason to believe that there might be something, then it’s a good idea to check, because often they do hide things down there.”

Four male officers surrounded Edwards. One officer loosened Edwards’s belt and stretched his pants and underwear out about six inches away from his body, and the officers directed a flashlight to see if anything unusual was there. As it turned out, there was indeed something unusual: Edwards had a clear plastic sandwich bag containing 43 smaller baggies of crack all wrapped around his penis. One of the officers put on gloves, took a knife he had with him, and cut the sandwich bag off. Edwards was […]

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Does Presence of a Concealed Weapon Create Reasonable Suspicion of a Crime?

A recent decision of the District of New Mexico, United States v. Rodriguez, 2011 WL 6739498 (D.N.M. Dec. 8, 2011) (Browning, J.) , addresses an issue of Fourth Amendment law that touches on Second Amendment concerns: In a concealed carry state, does police observation that a person is in possession of a concealed weapon create “reasonable suspicion” justifying a stop and frisk for a potential violation of the state’s concealed carry law? The court concludes that it does, although that conclusion strikes me as incorrect.

The facts of the case are complicated, but here are the basics. A local 911 dispatcher received a call from a woman who reported that she had just seen two employees of a convenience store show their handguns to each other while inside the store. The caller indicated that both of the employees were carrying the guns on their persons. Officer Munoz was dispatched to the convenience store, which was located in a high-crime neighborhood and which Munoz had visited in response to police calls many times before. Munoz entered the store and saw an employee restocking some products. When the employee bent over one of the shelves, the officer could see a handgun tucked in the waistband of the back of his pants. The officer asked the employee to step outside, and he grabbed the gun from the employee’s waistband for officer safety purposes. Once outside, the officer asked the employee if he had a permit to carry the gun. The employee, Rodriguez, said he did not. The gun turned out to be a loaded Smith and Wesson .357 magnum revolver. The officer arrested the employee for violating New Mexico law on carrying a concealed loaded firearm, which states in relevant part:

30-7-2. Unlawful carrying of a deadly weapon.

A. Unlawful carrying


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If a Dog Sniff Around a Car is Not A Search, What About a Dog Sniff Around a Home?

SCOTUSblog flags a pending cert petition on an interesting Fourth Amendment question: What limits, if any, does the Fourth Amendment place on the use of a trained drug-sniffing dog to approach the front door of a home? The police might do this to see if the dog will alert for the presence of narcotics in the home, which might then be used to help show probable cause and obtain a warrant to search it. Under Illinois v. Caballes, the use of the dog around a car is not a “search” and therefore outside the Fourth Amendment. The question is, does the Caballes rule apply when the dog is brought to the front door of a home rather than a car? A divided Florida Supreme Court ruled in Jardines v. State that Caballes does not apply and that probable cause is required to bring the dog up to the home for a sniff.

This may seem like the kind of minutiae that only a law nerd could love, but I think it rests on some very interesting puzzles of Fourth Amendment law. There are hundreds of different investigatory practices that the police might use to collect evidence, and there is no single guide for how to classify particular practices as a “technique.” At the sae time, the law interpreting the Fourth Amendment has to end up classifying each use of each practice somehow. This creates lots of line-drawing and classification problems that come up in Fourth Amendment law all the time. In my view, the earlier case of a dog sniff around a car was tricky because the use of sense-enhancing devices often raise hard problems: Everyone agrees that use of human senses can’t themselves violate the Fourth Amendment (eyesight, hearing, smelling, etc.), and the Court has held […]

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What Makes an Expectation of Privacy “Reasonable”? A Response to Chief Justice Roberts

During the oral argument a few weeks ago in United States v. Jones, Chief Justice Roberts had some very interesting questions about the Fourth Amendment’s “reasonable expectation of privacy” test. I fear that the Chief Justice’s questions may reflect a common misunderstanding of the test. In this post, I wanted to explain the Chief’s possible error, and explain how I think the reasonable expectation of privacy test is supposed to work.

I. The Possible Misunderstanding

The questions that grabbed my attention seemed to assume that the “reasonable expectation of privacy” test asks an empirical question — that a Fourth Amendment expectation of privacy is “reasonable” when reasonable people expect privacy. Just before the relevant exchange, Deputy SG Michael Dreeben had argued that using a GPS device on the suspect’s car could not have infringed the suspect’s reasonable expectation of privacy because it only revealed the suspect’s location in public. The Chief Justice responded:

CHIEF JUSTICE ROBERTS: I give you that, that it’s in public. Does the reasonable expectation of privacy trump that fact? In other words, if we ask people, do you think it’s — it violates your right to privacy to have this kind of information acquired, and everybody says yes, is it a response that, no, that takes place in public, or it simply the reasonable expectation of privacy regardless of the fact that it takes place in public?

MR. DREEBEN: Well, something that takes place in public isn’t inherently off limits to a reasonable expectation of privacy. That’s essentially the holding of Katz. You go into a phone booth, you’re in a public; making your calls within the phone booth is subject to a reasonable expectation of privacy. But this Court, with full awareness of that holding, in Knotts and in Karo recognized that surveillance of


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Thoughts on the Oral Argument in Messerschmidt v. Millender

I visited the Supreme Court this morning for the oral arguments in Messerschmidt v. Millender, a Fourth Amendment qualified immunity case I wrote about here. The transcript of the argument should be available here later this afternoon, but I figured I would post a few thoughts about the oral argument in the meantime:

(1) On the whole, the questioning left the impression that the Justice see the case as significantly closer than I was expecting. I saw the case as a relatively straightforward reverse, but the lawyers for the petitioner received a lot of push-back. The most surprising push-back was from Justice Scalia, who I read as indicating that he thought the errors in the warrant were obvious. Scalia is usually a strong pro-law enforcement vote in Fourth Amendment remedies cases, so if he’s on the other side, it’s hard to know where the votes will line up.

(2) Justice Kagan asked a particularly important question: What if the warrant is fine in many respects, but then has one defect in the list of items to be seized? That is, what if the warrant was sufficiently particular as to the guns, but no reasonable officer could think it was sufficiently particular as to the evidence of gang-related activity? This is a hugely important question in practice because it’s unfortunately very common for warrants to have a “catch-all” entry in the list of items to be seized. An officer will write a particular warrant, and then, just to be inclusive, throw in an extra item to be seized that is overly broad. Suppression challenges based on these “catch-all” entries are common, but don’t go anywhere: Courts routinely hold that even though a catch-all provision was overly broad, the evidence seized fell within one of the other (particular) items to […]

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Thoughts on Messerschmidt v. Millender, A Pending Case on Search Warrants and Qualified Immunity

On December 5th, the Supreme Court will hear oral argument in a Fourth Amendment case, Messerschmidt v. Millender, that concerns the particularity of search warrants and the qualified immunity standard. In this post, I’ll explain the facts and issues in the case and then offer my thoughts on how I think the Court should rule.

I. The Facts

Los Angeles police detective Curt Messerschmidt obtained an arrest warrant and search warrant for Jerry Ray Bowen, who was wanted for a domestic assault with a deadly weapon against his girlfriend, Shelly Kelly.  Kelly had tried to leave Bowen, and Bowen had responded with extreme violence when Kelly had called the cops to protect her. As the Ninth Circuit explained:

Bowen appeared and screamed, “I told you to never call the cops on me bitch!” Bowen physically assaulted Kelly and attempted to throw her over the top railing of the second story landing of their residence. Bowen grabbed Kelly, bit her, and tried to drag her by the hair back into their residence. When Kelly resisted by bracing herself against the door, Bowen grabbed both of Kelly’s arms, but Kelly was able to slip out of her shirt and run to her car. Bowen followed seconds later, now holding “a black sawed off shotgun with a pistol grip.” Standing in front of Kelly’s car, Bowen pointed the shotgun at Kelly and shouted, “If you try to leave, I’ll kill you bitch.” Kelly was able to escape by leaning over in her seat and flooring the gas. Bowen jumped out of the way and fired one shot at her, blowing out the front left tire of Kelly’s car. Chasing the car on foot, Bowen fired four more times in Kelly’s direction, missing her each time.

Detective Messerschmidt had considerable experience investigating gang […]

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Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case

I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I’m going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.

1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. The Justices pushed Michael Dreeben (arguing for the United States) on the consequences of his argument: If the Government was right, they noted, then the government can install a GPS device on all the Justices’ cars and watch them, too, along with everybody else. They pushed Steve Leckar (arguing for Jones) on the difficulty of identifing a clear Fourth Amendment principle to distinguish visual surveillance from GPS surveillance. The votes were hard to count, but if you had to summarize a reaction of the Court as a whole, I would say that the Justices were looking to find a principle to regulate GPS surveillance but unconvinced (at least as of the argument) that there was a legal way to get there without opening up a Pandora’s Box of unsettling lots of long settled practices.

2) The Justice who most clearly showed his cards was Justice Scalia. Justice Scalia made clear that he would overrule Katz v. United States; make common law of trespass the test for what is a search; and say that the installation of the device was a search because it was a technical trespass. Even if Katz can’t be overturned, Scalia indicated, at the very least the common law of trespass should be […]

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Saliva Left on Blood Alcohol Test Mouthpiece as “Abandoned” DNA?

Three weeks ago, I blogged about a Maryland case holding that a defendant had no reasonable expectation of privacy in his DNA left in a chair at the station house. Here’s a related decision: A new California case holding that a defendant “abandoned” his DNA, relinquishing his Fourth Amendment rights, left on a mouthpiece of a blood alcohol test. (Hat tip:

The case is People v. Thomas, and it involves a burglary suspect. A DNA sample of the burglar was found at the scene of the crime. Although the opinion downplays this, it seems the police were trailing the suspect and waiting for a moment to collect a DNA sample from him to find a match. They got the chance when the police had reason to think the suspect was driving drunk: The officer pulled over the suspect and he consented to a breath test. The officer was really interested in the DNA sample, not the alcohol test, however, so he kept the mouthpiece of the test for DNA testing instead of discarding it. A DNA test of the mouthpiece revealed a match. The California court held that the testing did not violate the Fourth Amendment:

[D]efendant in this case had no privacy right in the mouthpiece of the PAS device, which was provided by the police, and he abandoned any expectation of privacy in the saliva he deposited on this device when he failed to wipe it off. Whether defendant subjectively expected that the genetic material contained in his saliva would become known to the police is irrelevant since he deposited it on a police device and thus made it accessible to the police. The officer who administered the PAS test testified that used mouthpieces are normally discarded in the trash. Thus, any subjective expectation


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My View of the Second Question Presented in United States v. Jones, the Fourth Amendment GPS Case

This is my second post on United States v. Jones, the case on GPS and the Fourth Amendment. In this post, I want to explore whether the act of installing the device should count a Fourth Amendment search or seizure. My bottom-line is that I find this a surprisingly difficult and open question: Justices wishing to apply the Fourth Amendment in a way that is consistent with Fourth Amendment text, history, principles, and precedents could plausibly go either way. One implication of this uncertainty is that if the Justices decide to regulate GPS under the Fourth Amendment, focusing on the installation of the device is a much better option than trying to jump into the thicket of issues discussed in my first post about use of the device once installed. At the same time, it’s worth noting two additional wrinkles. The first is the uncertain standard of reasonableness that would follow from a conclusion that installing the device is a search or seizure. The second is the important role of statutory regulation, which may deal with some of the concerns raised by those who want the Supreme Court to construe the Fourth Amendment to sharply limit GPS monitoring.

I. General Principles on Searches and Seizures

Let’s start with first principles, which I will take in large part from this recent article. The general purpose of the Fourth Amendment is to regulate police collection and use of evidence so that police practices are reasonable. Police officers want to collect evidence to bring cases that prosecutors can charge, and they need two distinct types of power to do this successfully. First, they need the power to uncover and expose evidence so they can see it and recognize its importance to criminal cases. Second, they need the power to “freeze” evidence […]

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“Inherently Improper” Searches and Seizures: The Sixth Circuit’s Puzzling New Decision in United States v. Sease

Imagine a group of narcotics investigators decide to turn to a life of crime. They set up drug buys just as they normally would. They make their arrests based on probable cause, they search the dealers incident to arrest, and they recover the drugs. But then, instead of bringing the dealers in for charges, the officers release the dealers, sending them on their way. The officers then sell the seized drugs for a profit that they divide amongst themselves. In effect, the officers pretend to enforce the law but really just use their badges to help them steal drugs from criminals.

Next ask yourself what crimes the officers have committed. The most obvious crime is possessing and trafficking in narcotics. Although the courts have read an implied exception into the narcotics laws for police possession of narcotics in the ordinary course of their official duties, that exception would not apply if the officers are merely seeking to become illegal dealers themselves. But now consider this question: Did the officers also violate 18 U.S.C. 242, which prohibits willfully violating the constitutional rights of others, on the ground that the stop, arrest, and search of the dealers violated the dealers’ Fourth Amendment rights because officers were not engaging in a bona fide investigation?

In a decision handed down Friday, United States v. Sease, the Sixth Circuit ruled that the answer is “yes.” In an opinion by Judge Cole, joined by Judges Rogers and Griffin, the court held that that “where there is clear evidence that the officers were not engaged in bona fide law enforcement activities, but instead acted with a corrupt, personal, and pecuniary interest, the officers violate the civil rights of those that are stopped, searched, or have their property seized.”

I think Sease is unpersuasive, and that […]

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