Although rarely recognized, Justice Scalia often safeguarded the Fourth Amendment rights of criminal defendants. He did so in an era where, through our email accounts, the government could learn more about us than if it searched our cars or homes. So how does a court protect Fourth Amendment rights when the government possesses an ever-expanding array of investigative tools? Justice Scalia’s answer came in United States v. Jones (2012).
In characteristic fashion, Justice Scalia resolved the case by looking to the Founding Fathers. Scalia’s holding for the Court reintroduced a common law trespass conception of the Fourth Amendment. The government had attached a GPS tracking device to Jones’ car to better monitor his movements. Justice Scalia reasoned that the Founders viewed a trespass upon property with intent to monitor as a search under the Fourth Amendment, and the government had done just that in Jones’ case. Therefore, he concluded that the government had violated the Fourth Amendment.
Justice Scalia’s methodology sounds unsurprising for an originalist, but it shocked the lawyers who dealt with criminal procedure. The Court had tried the common law trespass approach before. Prior to Katz v. United States (1967), the presence of a common law trespass determined if a Fourth Amendment violation existed. But Katz’s “reasonable expectation of privacy” test seemed to sound the death knell for that approach. Judges, practitioners, and scholars understood Katz’s test to supplant the common law trespass understanding of what constituted a Fourth Amendment search. Yet forty-five years later, Justice Scalia had resurrected those property-based notions.
Though at first blush Justice Scalia’s new test disadvantaged defendants, it actually expanded the available judicial tools for a court to find a Fourth Amendment violation. Crucially, Justice Scalia’s framework is additive, so the Court never eliminated the Katz test. Indeed, the Court has employed both tests in its post-Jones cases. But of the two, the common law trespass approach is the more structured and rigid analytical framework. That structure and rigidity provide two immediate benefits to law enforcement, defendants, and courts—administrability and fixed expectations.
The common law trespass test provides a simple and easy analysis for the court. The underlying principles of common law trespass are learned in most torts or property classes, and the inquiry is based on objective facts. Did the police cross the defendant’s property? Did they do so with the intent to observe the defendant’s person, house, papers, or effects? A court can answer those questions quickly as opposed to making the more nebulous Katz determination.
Moreover, Justice Scalia’s framework creates a baseline set of protections for criminal defendants. The Katz framework is variable and subject to fluctuation because it depends on what society recognizes as reasonable, leading to different conclusions in different periods of American history. So while Katz currently protects our telephone conversations, our email accounts, and the data on our cell phones, there is no guarantee that it will continue to do so. The increasingly universal nature of the Internet is changing the meaning of the word “privacy” and reframing what degree of publicity is reasonable. Yet Justice Scalia’s interpretation provides rigidity. Even if two hundred years from now society believes that there is no reasonable expectation of privacy in an automobile, Justice Scalia’s test will still protect criminal defendants.
With Justice Scalia’s death, the Court and criminal defendants have lost an ardent supporter of the Fourth Amendment. That loss is regrettable (despite my disagreement with Justice Scalia on other issues). For as the Court’s 9-0 judgment in Jones demonstrated, the Court is adapting Fourth Amendment jurisprudence to the age of technology. Justice Scalia’s presence would have guarded criminal defendants in both the short-term and the long-term. Let’s hope the next justice does the same.