SCOTUS year in review: A quartet of Fourth Amendment cases
Privacy protections under the Fourth Amendment remain a core concern to the U.S. Supreme Court
It would be an understatement to say that the U.S. Supreme Court and its work was under a spotlight this past year. The nomination of Justice Brett Kavanaugh to the U.S. Supreme Court and the televising of the Senate hearings, particularly after sexual assault allegations were made against Kavanaugh, took an otherwise mundane governmental process and made it live theater. Divergent opinions as to Kavanaugh’s fitness to serve and the impact he would make on the Supreme Court became the topic of work and dinner table conversations. However, amid the public spectacle of the Kavanaugh confirmation the work of the Supreme Court and its sitting Justices continued. There were four important cases relating to the Fourth Amendment that merit review.
When police responded to a complaint of loud noise and illegal activity at an abandoned house they found a make-shift strip club, a naked woman and several men.
Upon questioning the occupants, a woman named “Peaches” was identified as the lawful tenant. When police questioned her by phone she first claimed to be renting the premises and to have given the partygoers permission to be there, but later admitted to not personally having permission to be in the house. The partygoers present were arrested for unlawful entry.
A lawsuit for false arrest was subsequently filed by several of the partygoers. The District of Columbia District Court found that the officers lacked probable cause and denied them qualified immunity. The Circuit Court of Appeals affirmed the District Court.
The U.S. Supreme Court reversed, finding that the lower courts failed to properly assess the officers’ actions under the “totality of circumstances” and improperly viewed each fact known to the officers in isolation. As a result the lower courts, according to Justice Thomas’ opinion, also improperly dismissed outright any circumstances “susceptible of innocent explanation.” The proper inquiry was whether a reasonable officer considering all of the surrounding circumstances could determine that there was a substantial chance of criminal activity. Justice Thomas then said that the officers were entitled to qualified immunity since there was no body of relevant case law stating that the officers’ belief there was probable cause was unreasonable.
Does a person who is not on a car rental agreement, but in lawful possession of the vehicle without the person who actually rented the vehicle being present, have a reasonable expectation of privacy in the vehicle? This is the issue at the core of a case involving the traffic stop of the defendant Byrd in a rental vehicle.
State troopers stopped Byrd for a state law violation of driving in the left lane without passing. When he turned over his license and the car rental agreement, the troopers noticed that he was not on the rental agreement. A records check revealed that Byrd had prior weapons possession and drug convictions.
The troopers asked for consent to search the vehicle, but in doing so advised Byrd that his consent was not necessary since the vehicle was a rental and he was not on the rental agreement. There was a dispute as to whether or not consent was actually given but the troopers proceeded to search the vehicle after Byrd admitted he had a marijuana cigarette in the vehicle. A search by the troopers yielded 49 bricks of heroin and body armor in the trunk.
Byrd’s trial motion for suppression based on an illegal search was rejected at the district court. His appeal to the Third Circuit was similarly rejected and his conviction was upheld. On appeal to the U.S. Supreme Court, Byrd’s attorney argued that the Third Circuit’s holding would allow police to search a rental vehicle without any particularized suspicion, presence of criminal activity, or warrant anytime a vehicle was being operated by someone not on the rental agreement.
In an opinion authored by Justice Kennedy, the Supreme Court held that Byrd, as one authorized and in possession of the vehicle, did have a reasonable expectation of privacy in the rental vehicle. The unanimous decision resolved a split among federal circuit courts of appeal regarding the question over right to privacy in rental vehicles.
The Supreme Court remanded the case back to the lower courts to determine whether the troopers initially had probable cause to search the vehicle and whether Byrd engaged in a calculated plan to use a third party to facilitate a criminal act.
Oral argument in Collins was heard the same day as Byrd, however, it presented a much different question with regard to automobiles and the Fourth Amendment –whether the automobile exception permits warrantless entry of a home or its curtilage in order to search a vehicle found thereon?
In finding that the automobile exception did not extend to such a search, the Supreme Court held that a police officer’s entry onto the driveway of a home to look under a tarp covering a suspected stolen motorcycle was an unlawful search.
The Supreme Court differentiated between the automobile exception and the curtilage to the home, curtilage being defined as the immediate area surrounding the home, which extends the private activities of the home. Since the scope of the automobile exception extended no further than the automobile itself the Supreme Court said that it could not be used to justify the search of the curtilage of the home. The motorcycle was not only covered by a tarp but was located under a partially enclosed area near the top of the driveway abutting the home. A Fourth Amendment search occurred because the officer physically intruded onto the curtilage to gather evidence.
There was no prior Supreme Court case law to suggest that an officer had the right to physically trespass upon the curtilage or the home itself to justify the search of an automobile without a warrant. Furthermore, Justice Sotomayor wrote that the automobile exception was not a categorical exception permitting the warrantless search of an automobile at any time or any place.
This was a much anticipated case with regard to Fourth Amendment protection of digital cell phone location data.
The FBI used historical cell phone site locator information to track the movements of several robbery suspects. Over 127 days the FBI captured 12,898 location points of defendant Carpenter, an average of 101 per day, which placed him in the area of several robberies. This information was obtained without a warrant and Carpenter moved to suppress the information.
The District Court denied the motion saying that Carpenter did not have a reasonable expectation of privacy in his cell phone locator records. The Sixth Circuit Court of Appeals affirmed. Under the third-party doctrine (Smith v. Maryland, 1979) any information that is shared with another, such as telephone records in the Smith case, lose any claimed expectation of privacy.
In the present case though, the Supreme Court, in a narrow decision, distinguished cell site locator information from the type of information shared in prior cases upholding the third-party doctrine. Chief Justice Roberts wrote that cell site locator information is not “truly shared” as the term is normally understood. Two main reasons were outlined for this rationale:
- Cell phones and cell phone services are “such a pervasive and insistent part of daily life” that carrying one is indispensable to daily life;
- Cell phones log locator information by virtue of their operation without any affirmative act on the part of the user other than turning it on.
Chief Justice Roberts emphasized that the Supreme Court’s narrow holding did not upset the third-party doctrine nor did it change normal surveillance techniques or tools used by law enforcement. However, in this instance probable cause was required and the government should have applied for a warrant to obtain the cell site locator information.
The Carpenter case represents the Supreme Court’s initial response to digital technology and the Fourth Amendment. There are other technologies presently utilized by law enforcement that may be impacted by Carpenter as this area of Fourth Amendment jurisprudence continues to develop.
Wesby, Byrd and Collins represent more traditional applications of established precedent. What is clear is that privacy protections under the Fourth Amendment remain a core concern to the U.S. Supreme Court yet the Justices, as in Wesby, will protect officers from liability for actions that are not clearly established as unconstitutional.