Property, the home, and Carpenter v. United States research Note

Please note that this post is from 2018. Evaluate with care and in light of later events.

As I noted previously, Orin Kerr has critiqued the Supreme Court’s version of Fourth Amendment history and the incorrect (but widely shared) characterization that Fourth Amendment searches have always been based on a property-based trespass framework.¹ On June 22, 2018, the Supreme Court finally handed down Carpenter v. United States, 585 U.S. ___ (2018)², which once again reiterated this mischaracterization—even though Justice Roberts’ majority opinion did so to yet again move away from a reliance on trespass and even though other articles and books by Kerr were cited numerous times by various justices.

In reviewing the case, I would tentatively suggest that Carpenter does not differ from historical precedent because it rejects a concrete property- or trespass-based approach to analyzing the Fourth Amendment, but rather because it, surprisingly, makes little reference, even rhetorically, to the domestic home (or ideologically related concepts like family life or chilren). Location data, like that in Carpenter, could allow a (rough, but ever-improving) view “inside” domestic spaces—but, surprisingly, Roberts barely gestures at this so-very-common rhetorical justification for American privacy.

Justice Kennedy’s dissent does discuss the connection to the domestic home when discussing Katz’s “property not people” formulation, though he uses it (not entirely correctly, I would suggest) to argue that it is property that is key—I would instead suggest that the domestic home has always meant more than mere property rights alone would suggest (which is why I argue that domestic spaces— in particular, and not property more generally, so often appears in Fourth Amendment analyses). As Kerr pointed out, a pure trespass analysis has never characterized the Court’s approach to the Fourth Amendment, even at the Founding, despite various attempts (like Kennedey’s) to make it so.

Katz did not abandon reliance on property-based concepts. The Court in Katz analogized the phone booth used in that case to a friend’s apartment, a taxicab, and a hotel room. 389 U. S., at 352, 359. So when the defendant “shu[t] the door behind him” and “pa[id] the toll,” id., at 352, he had a temporary interest in the space and a legitimate expectation that others would not intrude, much like the interest a hotel guest has in a hotel room, Stoner v. California, 376 U. S. 483 (1964), or an overnight guest has in a host’s home, Minnesota v. Olson, 495 U. S. 91 (1990). The Government intruded on that space when it attached a listening device to the phone booth. Katz, 389 U. S., at 348.

Carpenter, 2018 WL at *20 (Kennedy, J., dissenting).

Additional Relevant Quotes from Carpenter

Below, without analysis as yet, are a few quotes from Carpenter that are potentially relevant to a further exploration of this issue.

For much of our history, Fourth Amendment search doctrine was “tied to common-law trespass” and focused on whether the Government “obtains information by physically intruding on a constitutionally protected area.” United States v. Jones, 565 U. S. 400, 405, 406, n. 3 (2012). More recently, the Court has recognized that “property rights are not the sole measure of Fourth Amendment violations.” Soldal v. Cook County, 506 U. S. 56, 64 (1992). In Katz v. United States, 389 U. S. 347, 351 (1967), we established that “the Fourth Amendment protects people, not places,” and expanded our conception of the Amendment to protect certain expectations of privacy as well. When an individual “seeks to preserve something as private,” and his expectation of privacy is “one that society is prepared to recognize as reasonable,” we have held that official intrusion into that private sphere generally qualifies as a search and requires a warrant supported by probable cause. Smith, 442 U. S., at 740 (internal quotation marks and alterations omitted).

Carpenter, 2018 WL at *6 (Roberts, J.).

JUSTICE KENNEDY believes that there is such a rubric [for resolving which expectations of privacy deserve protection]—the “property-based concepts” that Katz purported to move beyond. … JUSTICE THOMAS (and to a large extent JUSTICE GORSUCH) would have us abandon Katz and return to an exclusively property-based approach. … Katz of course “discredited” the “premise that property interests control,” 389 U. S., at 353, and we have repeatedly emphasized that privacy interests do not rise or fall with property rights, see, e.g., United States v. Jones, 565 U. S. 400, 411 (2012) (refusing to “make trespass the exclusive test”); Kyllo v. United States, 533 U.S. 27, 32 (2001) (“We have since decou- pled violation of a person’s Fourth Amendment rights from trespassory violation of his property.”).

Carpenter, 2018 WL at *6, n.1 (Roberts, J.).

The Katz test strays even further from the text by focusing on the concept of “privacy.” The word “privacy” does not appear in the Fourth Amendment (or anywhere else in the Constitution for that matter). Instead, the Fourth Amendment references “[t]he right of the people to be secure.” It then qualifies that right by limiting it to “persons” and three specific types of property: “houses, papers, and effects.” By connecting the right to be secure to these four specific objects, “[t]he text of the Fourth Amendment reflects its close connection to property.” Jones, supra, at 405, 132 S.Ct. 945. “[P]rivacy,” by contrast, “was not part of the political vocabulary of the [founding]. Instead, liberty and privacy rights were understood largely in terms of property rights.” Cloud, Property Is Privacy: Locke and Brandeis in the Twenty-First Century, 55 Am. Crim. L. Rev. 37, 42 (2018).

Carpenter, 2018 WL at *33 (Thomas, J., dissenting).

Those who ratified the Fourth Amendment were quite familiar with the notion of security in property. Security in property was a prominent concept in English law. See, e.g., 3 W. Blackstone, Commentaries on the Laws of England 288 (1768) (”[E]very man’s house is looked upon by the law to be his castle”); 3 E. Coke, Institutes of Laws of England 162 (6th ed. 1680) (”[F]or a man[‘]s house is his Castle, & domus sua cuique est tutissimum refugium [each man’s home is his safest refuge]“). The political philosophy of John Locke, moreover, “permeated the 18th-century political scene in America.” Obergefell v. Hodges, 576 U.S. ––––, ––––, 135 S.Ct. 2584, 2634, 192 L.Ed.2d 609 (2015) (THOMAS, J., dissenting).

Carpenter, 2018 WL at *33 (Thomas, J., dissenting).

That is what makes the majority’s opinion so puzzling. It decides that a “search” of Carpenter occurred within the meaning of the Fourth Amendment, but then it leaps straight to imposing requirements that—until this point —have governed only actual searches and seizures. See ante, at –––– – ––––. Lost in its race to the finish is any real recognition of the century’s worth of precedent it jeopardizes. For the majority, this case is apparently no different from one in which Government agents raided Carpenter’s home and removed records associated with his cell phone.

Carpenter, 2018 WL at *50 (Alito, J., dissenting).

Second, I doubt that complete ownership or exclusive control of property is always a necessary condition to the assertion of a Fourth Amendment right. Where houses are concerned, for example, individuals can enjoy Fourth Amendment protection without fee simple title. Both the text of the Amendment and the common law rule support that conclusion. “People call a house ‘their’ home when legal title is in the bank, when they rent it, and even when they merely occupy it rent free.” Carter, 525 U.S., at 95–96, 119 S.Ct. 469 (Scalia, J., concurring). That rule derives from the common law. Oystead v. Shed, 13 Mass. 520, 523 (1816) (explaining, citing “[t]he very learned judges, Foster, Hale, and Coke,” that the law “would be as much disturbed by a forcible entry to arrest a boarder or a servant, who had acquired, by contract, express or implied, a right to enter the house at all times, and to remain in it as long as they please, as if the object were to arrest the master of the house or his children”). That is why tenants and resident family members—though they have no legal title—have standing to complain about searches of the houses in which they live. Chapman v. United States, 365 U.S. 610, 616–617, 81 S.Ct. 776, 5 L.Ed.2d 828 (1961), Bumper v. North Carolina, 391 U.S. 543, 548, n. 11, 88 S.Ct. 1788, 20 L.Ed.2d 797 (1968).

Carpenter, 2018 WL at *64 (Gorsuch, J., dissenting).