United States ,  decided in , is a wonderfully instructive search case because it involved no seizure at all. It allows us to observe search in the abstract and see how concealment subjected to search produces exposure. Kyllo does not involve the familiar operation of light, of course, but radiation in a non-visible part of the electromagnetic spectrum. In the case, agents of the U. Department of the Interior suspected that Danny Lee Kyllo was growing marijuana using high-intensity lamps in his home on Rhododendron Drive in Florence, Oregon. Using this and other information, the agents obtained a warrant, searched the home, and found the drugs they suspected.
The opaque and impervious walls of his home physically prevented others from seeing, hearing, or smelling—and certainly from tasting—what occurred or existed within. Nor could they enter into the house. They exposed that there was a source of unusual heat inside, which allowed them to draw inferences about its cause. The Supreme Court found the use of thermal imaging on a home without a warrant to be a Fourth Amendment violation.
That question comes later in a methodical analysis.
As in Ex Parte Jackson , the rationale of the Katz majority was that people who generally conceal information on or about their persons, houses, papers, and effects have concealed it from the government. Consent searches Chapter 9. W Reserve Westlaw. Imwinkelried et al. Courts may benefit from this straightforward mode of Fourth Amendment reasoning for years to come.
The rule should be that information one conceals from the general public is also concealed from government agents. When government agents seek to expose concealed things by defeating or eluding physical or human laws, it is a search. Search can also exist if government agents intensely examine exposed things. But manufactured exposure is a strong signal of searching.
The Supreme Court is having mixed success with placing topical investigatory techniques and evidentiary materials, such as drug-sniffing dogs and DNA, within the concealment-versus-exposure rubric. Doing so with more precision would improve Fourth Amendment administration.
In Florida v. Jardines , for example, the Court found that bringing a drug-sniffing dog to the front door of a home exceeded the scope of the traditional license that property owners offer to uninvited guests. United States ,  like Illinois v.
Caballes before it,  the Court examined how long a suspect was seized so a dog could sniff around him for drugs. These cases elide the central aspect of a drug-sniffing dog examination, which is to search for drugs. Drug-sniffing dogs are analogous to thermal imagers in that they take physical phenomena that are imperceptible to humans and make them perceptible.
Trained dogs are cuddly chromatographs. The question when they do give exposure to something in or on a person, house, or effect is whether such a search was reasonable. The Court has easily recognized that DNA analysis is a search, but it has somewhat muddled the concepts. The Court in Maryland v. It is highly directed, technically enhanced observation: a search. Treating it as not searched because the bodily material is not seized would be an error. DNA analysis of material collected in a rape kit or from under the fingernails of a murder victim would likely be reasonable because the bodily material from which DNA is analyzed is itself direct evidence from the crime scene.
When development of the technology allows it, mass scale DNA analysis should probably be found flatly unreasonable, as suspicion lacks and any warrant permitting it would be a general warrant to search the material sloughed off the body of any person that had been in the collection area. Real cases should flesh out the rules, but DNA and the information it contains are naturally concealed. The special problem of communications is a little challenging to fit within the concealment-versus-exposure rubric, but careful analysis shows that it fits well.
The constitutional protection of postal mail and its basis in concealment show how to administer constitutional protection of telephone and Internet communications today. Many of their communications, after all, had dealt with subject matter that the British Crown and Loyalists would have regarded as treasonous. The Court made an important distinction: it accorded constitutional protection to mailed content if senders had initially concealed the information in their mailed items.
Mailed matter left open had no physical security and thus no constitutional security. The arrangement of postal mail to conceal gave its contents protection backed by the Fourth Amendment. In Olmstead , the Court failed to adapt that rule to a new technology. Telephone communications are much like written letters, except that they reduce words to electric today, digital signals rather than printing on paper. Crucially, these signals pass along telephone lines invisibly and inaudibly to any human.
They are concealed. Accessing them requires an invasion of the private property of the phone company and its customers, as well as a search of the electrical signal to draw its meaning out of concealment. Government agents took the conversations down to use as evidence. There was no seizure. The evidence was secured by the use of the sense of hearing, and that only. The wire and signals both were seized and the signals searched. These efforts gave exposure to formerly concealed information, a search. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.
But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. The paragraphs that followed discussed the import of Katz going into a phone booth made of glass that concealed the sound of his voice. Exposing the concealed conversation was a Fourth Amendment search. As in Ex Parte Jackson , the rationale of the Katz majority was that people who generally conceal information on or about their persons, houses, papers, and effects have concealed it from the government.
Other than in certain narrow cases, such as exigency, the government cannot overcome this concealment via seizure or search except after getting a warrant. This rationale applies the same way to Internet communications, which operate similarly to mail and telephones.
Rather than words or sounds converted to writing or analog electrical signals, Internet communications and data are converted into digital formats. As letters and telephone calls do in their media environments, Internet communications pass invisibly and inaudibly along privately owned and apportioned wires, switches, and fiber-optic cables. The communications are concealed from observation by physics and law. All this comports with common meanings of words, both today and at the time of the Framing. Efforts to expose concealed things are not the only signal of searching.
The use of certain devices or technologies to enhance perception of exposed things may signal when sensing activities cross over from casual looking to directed searching. But the use of highly powerful or exotic visual, audio, or other collection or analysis tools may exhibit that intensity or directedness that converts looking to searching. One example of exotic technology used on exposed things is facial recognition. Facial recognition can be done on photographs that were taken voluntarily or with the acquiescence of the subject,  so collecting the appearance of the face is typically not a seizure.
There is no right to exclude others from such imagery per se. Gathering a facial image in the visible spectrum does not give exposure to concealed things, so collection of a facial image is not a search on that basis. That does not foreclose the question whether exposed facial images once collected might be searched.
Facial recognition systems work by converting the features of the face to a matrix of spatial relationships among its features, of colors, and textures. The distances between the eyes, width of the nose, color of the skin, and so on become elements in what is essentially a biometric signature. When the facial signature is collected, there may be no investigation underway, which may seem to imply that there is no Fourth Amendment search—just some inert administrative process.
But the conversion of a face image to a facial recognition signature has only one purpose: to find something later. Searching has two conceptual parts, which generally occur in a particular order. First, the specific thing to be searched for is identified. Next, the field in which it may be found is examined.
Searching a forest, for instance, involves identifying the person, instrumentality, or evidence to be found, then marching through the area with eyes peeled for that thing. Facial recognition reverses these processes. It collects the material to be canvassed—facial signatures—then at any later time canvasses the earlier-collected facial signature data for a match. The fact that the steps in the process are reversed should not change the conclusion that facial recognition is a search technology and the use of it is a search. Conversion of a facial image to a facial signature that can be scanned for matches is a search of the face itself to render data that make the face amenable to being the object of a later search.
It is enough of a step in the process of searching that it is best recognized as a search occurring at the time the processing is done. The fact that facial scanning is a search should not bias the question whether or not it is reasonable. It would seem unreasonable to collect and scan facial images of everyone appearing in a given public place, because none of them are suspicious by dint merely of being there.
The mass of facial images collected for that purpose will be attractive for searching in pursuit of criminal suspects forever after the initial collection. Recurring searches of these facial signatures would wisely be regulated by the warrant requirement, though courts should determine this in actual cases. The recent popularity of unmanned aerial flying vehicles, or drones, has raised the question of how their use by government agents might interact with the Fourth Amendment.
Posit a fact situation analogous to Jones , but without attachment of a GPS device to a car. Rather, government agents sic a tiny cadre of drones to follow a car and note its whereabouts for weeks on end. Or imagine a drone flown above public property at an angle high enough to observe goings-on in a fenced backyard or through open windows.
High-orbit, high-resolution cameras and monitoring software today allow extremely detailed observation and tracking of numerous people and things across vast expanses for long periods of time. California v. The high fences around the house did not necessarily manifest a subjective expectation of privacy, it turned out.
Riley ,  the Court extended this precedent to observations taken from a helicopter at feet. Ciraolo and Riley seem wrongly decided.
As a precedent for drone- and satellite-based observation, Ciraolo would ratify aerial observation of all people, houses, and things exposed to the sky without limit. Inquiring about privacy expectations, subjective or objective, is a poor way to administer the Fourth Amendment relative to the methodical, text-based analysis suggested here. Protecting privacy requires understanding what privacy is, as well as the role of concealment in protecting it. People maintain privacy by exercising control over personal information as they see fit.
Whether or not the Fourth Amendment requires it, giving individuals the same level of control over personal information today as they had at the time of the Framing is at least a meaningful and judicially administrable goal. One simply has to examine how people controlled information in the past and see that their ability to do so is maintained in the present.
In the late eighteenth century, people controlled information about themselves by arranging things in the world around them. Draping the body with clothing made the details of its shapes, textures, and colors private. These methods use the physical properties of things to block sound waves, photons, and similar phenomena. A list of all privacy-protecting decisions and behaviors would be very long, and it would not be helpful for crafting lasting privacy-protecting rules. But abstracting the nature of privacy protection can: People protect privacy through concealment, literally by preventing others from perceiving things.
The concepts should be familiar by now: Perception of something comes from being able to collect its representation in physical media. Photons reaching eyeballs make a thing visible to a person. Sound waves reaching eardrums make a thing audible to a person. The surface of an object touched or pressed upon by skin can reveal its density, hardness, size, and weight. The observer draws inferences about things, and about the people who own and control them. When photons, sounds waves, particulate remnants, and surfaces that reveal things are not available, such things are concealed, and the drawing of inferences about people is blocked.
This, again, is how people protect privacy. They did it this way in the late-eighteenth century, and they do it this way today. It is not enough, of course, for people to withdraw into their homes, lower their voices, or get dressed. When people enter their homes, they do so relying on the aggregate of rights that prevent others from entering or accessing their homes to discover what goes on within.
They rely on property rights, as Danny Lee Kyllo did. When people put on clothes to prevent photons from revealing the appearance of sensitive areas, they do so relying on protection against wrongful physical contact that might strip the body of its wrappings. They rely on the law of battery, as Terry did in Ohio. Sometimes people do rely almost entirely on physics to protect privacy, such as in Katz , by lowering and shrouding their voices in public places. And sometimes they rely heavily on law, such as when they share information with a fiduciary or service provider bound to confidentiality by contract or regulation.
Most of the time, people protect privacy using natural laws and human laws together to conceal. When government agents seek to expose concealed things, threatening privacy or rendering it asunder, that is searching. But reasoning backward from privacy expectations is not a sound way to administer the Fourth Amendment. The question of privacy expectations produces maladministration of the Fourth Amendment. Courts are not at their strengths examining why people erect physical barriers, what they think about them, or what others should think of their thinking.
The Supreme Court has not historically relied on privacy and privacy expectations. Most cases rely on concealment and exposure. The constitutional import of a search or seizure turns on later questions such as whether the search was of a constitutionally protected item and whether or not the search was reasonable.
Some care is required to fastidiously identify seizures and searches, of course. The former is any invasion of a property right, and the latter is intense sensing, often signaled by effort to remove concealment from something and give it exposure. The house, the body, the gun, and the paper can be seized and searched. The wire, the communication, and the data can, too. They are all potential subjects of seizure and search regulated by the Fourth Amendment.
When there has been a seizure or search, the next question is whether it was of a constitutionally protected item—a person, house, paper, or effect. Perhaps absorbed by confusing Fourth Amendment doctrine, the Supreme Court has rarely made explicit what the contours of these concepts are. But they are mostly familiar and commonsensical. Oliver v.
Government agents who invade uninhabited private lands should be liable for trespass, perhaps, but they do not violate the Fourth Amendment. It was not papers as a form-factor for cellulose that the Framers sought to protect, but the common medium for storage and communication of information. The federal trial court system has recognized, as it must, that digital representations of information are equivalent to paper documents for purposes of both filing and discovery.
At least one lower court has found constitutional protection for email clearly enough to rely on its premise that email represents a paper or effect. Warshak , the U. Email is the technological scion of tangible mail. A car is an effect. Whatever the case, if a constitutionally protected item was searched or seized, the final question is whether that was reasonable. But the more methodical analysis allows for such a thing as a reasonable search or seizure. This is where the judging should occur. And it has less to do with the ordinary sensibilities of decent people, as modern usage would suggest.
That which was inconsistent was unreasonable and, ipso facto, illegal. Searching or seizing that falls within these bounds would almost always be constitutionally reasonable. But a seizure or search that would be a civil or criminal wrong under ordinary circumstances must occur only after the second-thought and third-party review provided by the warrant application process.
The Olmstead Court would have done well to heed the Washington state law that made it a misdemeanor to intercept messages sent by telegraph or telephone. To serve well, the reasonableness analysis must allow for reasonable seizure and reasonable search. Imagine a law enforcement officer walking down the street. She trips on a crack in the sidewalk and reaches out to steady herself on a nearby automobile, leaving a noticeable smudge. The better way to think of steadying oneself on a car is as an entirely reasonable seizure. Were the officer to have converted the car to her purposes in a different way—attaching a GPS device to it, for example, so as to track its movements—this creepy behavior, recognized as illegal stalking in many states,  is not reasonable without a warrant supported by probable cause.
The same goes for reasonable searching. Say our law enforcement officer is at the beach. Espying odd behavior—maybe an incipient fist-fight—off in the direction of the wharf, she raises her binoculars to her eyes and looks at what is happening there. It is an arguable invasion of the intrusion on seclusion branch of the common law privacy right. Courts will better analyze the abstract behavior without reference to what it turns up.
They should be cautioned against reasoning backward, of course, and it will be fairly obvious when they do. There is no replacing the need for judging in close Fourth Amendment cases. Courts should use the ordinary meanings of the words in the Fourth Amendment and employ relatively familiar and settled property, contract, and tort concepts, as well as statute and regulation. They should strike balances based on the facts in individual cases rather than by making sweeping pronouncements about privacy.
United States v. But a more obvious analogy from principle to new technology is hard to imagine. Opening an email is a search of it. Courts may benefit from this straightforward mode of Fourth Amendment reasoning for years to come. In part, the failure of courts to administer the Fourth Amendment well can be laid at the door of the general legal environment, which does not yet comprehend communications and data very well.
Our entry into the Information Age demands a new, higher respect for data, information, and communications as common law property. The Fourth Amendment and society generally will benefit from legal development in this area, which would parallel legal advances of the past. In feudal times, prior to the development of trade and commerce, personal property was not well recognized by the law. It was treated something like communications and data are treated now. Benjamin Constant described in his classic speech, The Liberty of the Ancients Compared with the Moderns ,  how important rights in personal property were to the development of liberty.
Property rights in movables emancipated the peon by allowing him to acquire wealth that was portable and, through wealth, a measure of independence. They were used commonly enough and recognized as high-enough in value that the Framers of the Bill of Rights wrote their protection into the Fourth Amendment.
The protection of these things as property helped form a nation conceived in liberty. Today, we are seeing a rise of commerce in information and communications that parallels the growth of commerce in personalty hundreds of years ago. But the legal environment around information remains in a feudal era. With the growth of commerce in information, recognition of communications and information as a form of property would rebalance the relationship between the individual and the state.
Justice Butler laid the groundwork for establishing clearer Fourth Amendment rights with respect to information in his Olmstead dissent. Under contract with telephone companies, callers have the legal right to exclude others from their calls. The communications themselves belong to the parties between whom they pass. And if it is, the final question is whether the search or seizure was reasonable.
Crucially, this model puts courts in their familiar role of applying the law to the facts in cases that come before them.
And it would help the U. Supreme Court preserve the degree of privacy people enjoyed at the time of the Framing. He bequeathed us some very helpful ratio dissensi. Payne v. Tennessee , U. See William G. Tomlins ed. David R. Brandeis, The Right to Privacy , 4 Harv. Olmstead , U. See, e. Arch Wireless, 5 Seton Hall Cir. Art Tech. California , U. United States , U. See id. See Susan W. The ownership of information is similar to the contents of private conversation in which the information belongs to the parties to the conversation.
Jones , U. There is a second phase to the Fourth Amendment, of course. Civil Litigation. See more law subjects Corporate Tax. Financial Planning. International Tax. HR and Compliance. Technical Support.
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