Cert Petition Litigation Update: United States v. Tuggle and the Meaning of “Search”

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An exciting petition for certiorari pending before the U.S. Supreme Court, United States v. Tuggle presents the question "Whether long-term, continuous, and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment."  The central question deals with the meaning of the word "search."  Under Katz v. U.S., the reasonable expectation of privacy test defines a "search."  Many argue Katz is incorrect.  Instead, the Court should interpret search to have its ordinary public meaning--a purposeful, investigative act.  Please join our speakers in a discussion about United States v. Tuggle, the Fourth Amendment, textualism, the meaning of the word "search," and importantly, whether the Court should grant cert in this case.

 

Featuring:

 

Professor Orin Kerr, William G. Simon Professor of Law at UC Berkeley School of Law

Josh Windham, attorney at the Institute for Justice

Moderator: Adam Griffin, Law Clerk, U.S. District Courts; former Constitutional Law Fellow, Institute for Justice

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As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript

 

Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

Evelyn Hildebrand:  Good afternoon and welcome to The Federalist Society's virtual event. This afternoon, February 17, we discuss a cert petition litigation update: United States v. Tuggle. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the experts on today's call.

 

      Today we are fortunate to have a pair of very excellent speakers. And the conversation will be moderated by Mr. Adam Griffin, whom I'll introduce very briefly.

 

      Adam is currently serving as a judicial law clerk for the federal courts. And he is a former intern at the Institute for Justice. He's also an Executive Committee member of The Federalist Society's Environmental Law and Property Practice Group, the practice group that's sponsoring this afternoon's event.

 

       After our speakers give opening remarks and engage in moderated discussion, we will open the floor for audience questions. If you have a question, please enter it into the Q&A feature at the bottom of your screen, and we'll handle questions as we can towards the end of the program this afternoon. You can enter those questions at any time into the Q&A tab.

 

      With that, thank you for being with us today. Adam, the floor is yours.

 

Adam Griffin:  Thank you, Evelyn. And thank you to The Federalist Society for hosting this event today. We've got two fantastic speakers talking about an exciting petition for certiorari that is currently pending before the United States Supreme Court, United States v. Tuggle.

 

      Tuggle presents the question whether long-term, continuous and surreptitious video surveillance of a home and its curtilage constitutes a search under the Fourth Amendment. The central question deals with the meaning of the word "search." Under Katz v. United States, the reasonable expectation of privacy test has come to define the word "search." Many argue that Katz is incorrect. Instead, the Court should interpret "search" to have its ordinary public meaning: a purposeful investigative act.

 

      Please join our speakers in a discussion about United States v. Tuggle. First speaking is Josh Windham, an attorney at The Institute for Justice. Josh joined The Institute for Justice in 2016, after receiving his law degree from the University of North Carolina School of Law, where he served as president of the UNC Federalist Society Student Chapter, and as judicial extern for Magistrate Judge Robert Numbers.

        Since joining IJ, Mr. Windham has litigated numerous state constitutional economic liberty cases, including a landmark victory at the Pennsylvania Supreme Court defending the state constitutional rights of a vacation rental entrepreneur. Significantly here, Mr. Windham is a leader in IJ's project on the Fourth Amendment. He is litigating state constitutional challenges in Tennessee and Pennsylvania on behalf of property owners and defending a taxidermist in the Ohio Federal Court from warrantless searches of his shop. Thank you, Mr. Windham, for being here with us today to share your expertise and experience.

      Second will be speaking Professor Warren Kerr, the William G. Simon Professor of Law at Berkeley Law. He is one of the country's leading scholars on the Fourth Amendment and criminal procedure. His articles are regular fixtures in judicial opinions, including frequent citations by the Supreme Court justices.

 

      Before becoming a renowned scholar, Professor Kerr served as a law clerk for judge Leonard I. Garth of the Third Circuit, and then Justice Anthony Kennedy of the United States Supreme Court. He also served as an attorney for DOJ, and as special assistant U.S. Attorney.

 

      Importantly here, in addition to Professor Kerr's extensive scholarship on the Fourth Amendment, he has recently published "Katz as Originalism," offering a compelling originalist and textualist defense of Katz, contrary to conventional wisdom. He also served [audio cut 00:03:58]. Professor Kerr, thank you so much for participating in today's event and sharing your expertise with us.

       Josh, the floor is yours.

Josh Windham:  Well, thank you very much. And thank you to The Federalist Society for having me today, and for Professor Kerr for hopping on here. I'll provide a little bit of background on the case, and then offer some thoughts. And my thoughts will largely echo thoughts that we kind of lay out in our amicus brief that we filed in support of cert.

 

      So, in 2013, state and, I believe, federal police as well, in Illinois, started to suspect that Travis Tuggle was involved in a meth distribution conspiracy. They believed that he was dealing out of his home. But they didn't have enough facts to get a warrant. So they went looking for more information.

 

      And to get that information, they mounted cameras on utility poles on public land surrounding Tuggle's home. And they recorded 24-7 surveillance of his comings and goings and other activities. The cameras weren't super high tech. They weren't useless either, though. Police could tune in live and they could watch Tuggle's home, basically around the clock. And the cameras could zoom, they could pan, they could adjust angles to get a better view. There was even technology that slightly increased their ability to see at night. And, ultimately, they could run back the tape to rewatch any minute of any day at the officers' pleasure.

 

      So all of this went on for 18 months without Mr. Tuggle's consent, his knowledge, or a warrant. And, eventually, police used the information they got from the cameras to get a warrant. They searched his home. And they charged Tuggle with federal drug crimes.

 

      So, as criminal defendants often do, Mr. Tuggle moved to suppress. His motion was denied. Three times, I might add. And he entered into a conditional guilty plea. He eventually appealed to the Seventh Circuit. And the Court held — in a pretty lengthy opinion that I can't possibly capture here because it's quite long, and with some strong reservations — that the pole camera surveillance didn't constitute a search under the Fourth Amendment.

 

      Now, Mr. Tuggle petitioned for cert, which is why we're here talking. And he essentially argued that pole camera surveillance is an issue that keeps coming up and on which there is a growing split of authority. Now, most circuits that have dealt with this issue seem to have sided with the government. So rather than focus on the petition itself, which we can talk about, I'm happy to, but I think it's worth briefly summarizing the Seventh Circuit's reasoning and offering a few thoughts of my own that I'm hoping maybe can further some discussion here.

 

      So the Seventh Circuit's precise holding -- this is at 5:11 of the opinion was — and I'm just going to paraphrase here — that the government's use of a technology in public use while occupying a place it was lawfully entitled to be to observe plainly visible happenings, wasn't a Fourth Amendment search.

 

      Now, again, the Court's opinion is long. I don't want to give it short shrift. But I think there is -- it's fair to say there's three major/maybe one minor premise at play here. The first is that the Katz test applies. Now, these days, as Adam noted, the Court says that there are really -- this is one way to define a search. But there's really two ways. There's the government physically intrudes into a constitutionally protected area in order to obtain information. That's Jones, or Jardines.

 

      And, two, the government infringes on an expectation of privacy that society is prepared to consider reasonable. And that's the test drawn from Justice Harlan's concurring opinion in Katz.

 

      Now, because the cameras were place on utility poles on public land, there wasn't really a physical intrusion of Tuggle's person, house, papers, or effects. And so the case really comes down to the application of the Katz test. So that's what I think is major premise number one.

 

      The second is that, under Katz, people don't have a reasonable expectation of privacy in things that they knowingly expose to the public. And Katz itself said this. Later cases went on to repeat the point in different factual situations, including those involving visual surveillance of the home. There's the Ciraolo case, which involved flyover of a backyard and arial photos.

 

There is the plurality of Payton and Riley where a helicopter looks through a greenhouse in a backyard from a few hundred feet up. And even Kyllo itself, which I'll talk about in a second, said — and I'll just quote here — "visual observation is no search at all."

 

      So that's kind of the premise that arises from those cases. So, because the cameras here only recorded the outside of Tuggle's house, and, crucially, because Tuggle didn't put up any sort of barrier to shield public eyes, like the party did in the Fifth Circuit case from the '80s, he didn't have a reasonable expectation of privacy, at least under the Katz test.

 

      Now, the third premise — and I don't know whether to call this a major or minor premise — is that, under Kyllo, people don't have a reasonable expectation of privacy against surveillance by technology that's in general public use. Kyllo — for those who want a quick refresher — is this 2001 case holding that police, who were stationed on the street, violated a reasonable expectation of privacy when they used a thermal imaging device to scan a person's home. And that violated a reasonable expectation of privacy because police used a technology that wasn't in general public use to get information about the inside of the house that they otherwise could only get by physical intrusion.

 

      Now that was a problem for Tuggle here, because cameras are ubiquitous in modern society. We all carry them around every day. So the Seventh Circuit's hands were tied. Even if 18 months of pole camera surveillance might have violated a reasonable expectation of privacy under some alternative theory, the mosaic theory, for example — which, I'll note, the Seventh Circuit does a lot of citing to Professor Kerr's work on that front — the government wasn't using some cutting-edge technology. They were using a technology in general public use. And, under Kyllo, that meant that there was no search.

 

      Now, part of the reason why this case has captured so much attention is that the Seventh Circuit was clearly frustrated with the decision. It was frustrated by the state of Fourth Amendment jurisprudence and by Katz and Kyllo in particular. And the Court clearly felt that 18 months of round-the-clock surveillance was an intrusive thing. But given what Kyllo said about choosing to expose things to public view, given what — or what Katz said, rather — and what Kyllo said about technology in general public use, the Court didn't really have an option here.

 

    Now, the Institute for Justice, we filed an amicus brief in the case. And our point was relatively straightforward. The Katz test — looking for expectations of privacy that society is prepared to accept as reasonable — that isn't really a normal definition of the word "search." When we use the word "search" in daily life, we mean that a person is purposefully looking for something. And that could be anything. It could be a destination. It could be lost keys. It could be a new job. If you're a police officer, it could be evidence of a crime. And that's pretty much how ordinary people used the term when the Fourth Amendment was adopted too.

 

      Now, if we apply that conception here, most of us, if we learned that a neighbor was secretly surveilling us for 18 months with cameras pointed at our homes, we wouldn't really think twice about what was going on. We would say the neighbor was searching for something: information about our activities, our habits, our routines, whatever else. It's hard to see why our conclusion should change when the people doing the spying, the looking, are police.

 

       Now, on a broader note, I think it's also hard to see why we need a technical legal test for a term that most of us have no trouble using every day. And just think of one example that I think helps illustrate the confusion. Suppose that police come and knock on your front door and they ask to come inside to look for drugs. Now, you have nothing to hide, so you consent. And you say, "Yeah. Go ahead and look around."

 

      It seems pretty obvious that what you're consenting to there is a search of your home. And yet, under Katz, police aren't searching your home, because you've chosen not to preserve the area as private. Now, I just think that seems off. My hope is that the Supreme Court will grant review here and use this case as an opportunity to clarify and, ultimately, to simplify the search inquiry.

 

      And my hope, if the Court does that, is that more cases will turn not on whether a search has occurred, but on whether the government's conduct is reasonable or not.

 

      And I know that I'm kind of getting towards the end of my time there. So I'll let Professor Kerr take things from here, and then maybe we can chat a little bit.

 

Adam Griffin:  Great. Professor Kerr? Thanks, Josh.

 

Prof. Orin Kerr:  Great. Very happy to be here, Josh. Great to be here talking about these issues with you. And Adam, it's great to be here with you as well. So this is a really great topic. And let me offer two different kinds of thoughts on this. First, I want to talk about the Tuggle case itself, and then some of the broader issues about how to interpret what is a Fourth Amendment search that it implicates.

 

      I think the question of how the Fourth Amendment should apply to pole cameras, which is our problem here, is really, really hard. On one hand you've got a background rule which the old technology cases will tell you is sort of the traditional rule that public visual surveillance is not a search. Whatever occurs in public is not a search. And I don't think that's Katz. That pre-Katz law. That goes back to the first sets of cases. That goes back to Entick v. Carrington, talking about "the eye cannot commit a trespass" in 1765. And so that's always been the rule, that it's basically the Fourth Amendment is about breaking into private spaces. And so that which occurs in public is something that the Fourth Amendment does not protect. That's one possibility.

 

      On the other hand, you've got the reality that technology is advancing and is allowing the government to do things using public surveillance that it couldn't do before. Not only can there be a camera that is in public, it can be operating 24 hours a day. It can operate at night. It can be something  that can have a very high resolution. It's low cost.

 

And so this is expanding the amount of government surveillance, and changing, to some extent, the effect of the legal rule that public surveillance is not a search. And that creates a pressure for courts to then say, "Well maybe some of this is a search," or "All of it is a search."

 

      What's tricky, I think, just from a regulatory standpoint — let me put the doctrine aside for a little bit — is what the rule should now -- if the rule is not the traditional common law, Entick v. Carrington answer, what is the new answer? And there are two categories of possibilities.

 

One would be that all camera surveillance is now a search. And then you need a constitutional jurisprudence answer to what is defined as a camera. And so maybe you could say a iPhone doesn't count as a Fourth Amendment camera, but a pole camera counts as a Fourth Amendment camera. And so you have the Supreme Court craft a constitutional category of thing that is a search to prevent what otherwise would be kind of a weird result of officer walks by a house and takes a picture of it and needs a warrant to take a picture of it, or something strange like that. So that's a possibility.

 

      Another possibility is — and this is kind of like the mosaic theory — is saying that maybe it's not a search if the government uses cameras in some ways, but not others. Maybe it's not a search for 24 hours and it becomes a search after 24 hours. Or a certain resolution of the camera used for a certain period of time in a certain combination with other technological techniques, maybe at some point that becomes a search.

 

This is a suggestion that -- this is, as I mentioned earlier, the mosaic theory of the Fourth Amendment that maybe searches are not discrete things, as they traditionally have been. But maybe there's kind of a new idea that a search is some collective where you look at the mass of surveillance that occurs, and then, in some ex-post-Gestalt sort of way, say a line was crossed. There was enough surveillance that it counts as a search.

 

      And this is an idea which I think is very hard to administer. I don't think courts should do this. But there's a lot of interest in this approach. And so I think what makes Tuggle a hard case for the Supreme Court to take. And why, ultimately, I think the Court should be wary about granting cert at this stage, is that most of the cases have gone in the direction of saying, as the Seventh Circuit did, that pole camera surveillance is not a search, and that if you say it is a search, you have to then say when is it a search. And you need to grapple with which of these other two approaches you take. Either all cameras are search with a constitutional definition of camera, or sometimes it's a search, depending on the circumstances and, if so, when.

 

      And I think for the Supreme Court to intervene and to try to figure these questions out, you'd want to have more lower court grappling with the options to help explore what those options might be. Because otherwise what happens is that the Supreme Court has to decide between it's not a search and it's a "who knows?"

 

      And so I'd love to see more exploration of what the "who knows?" options are before it gets to the Supreme Court, because they get their one shot to figure out what the rules are. And the more lower courts have grappled with it, I think, the better.

 

      So, from that standpoint, just taking Tuggle as a specific cert petition, I'd be more comfortable with the Justices denying cert and letting lower courts figure this out. This issue is pending in banc in the First Circuit in the United States v. Moore-Bush. I think it's also pending maybe in the Ninth Circuit. A couple of circuits are all kind of trying to figure this out. And within a year or two we'll have more cases and that will be a good thing.

 

      The other part of this is what do you do with the Fourth Amendment test, more broadly. Whether it's framed as reasonable expectation of privacy or trespass, what does the test do? My own sense is that whether you apply the reasonable expectation of privacy or trespass or common meaning or anything, it all kind of leads to the same result. These are all kind of flexible tools that could be used to get to different answers. And so I personally think which language, which term is used, is a lot less important than how whatever the term you use ultimately is employed, in terms of what doctrinal rule you get.

 

      And so the reasonable expectation of privacy framework is not responsible for the visual surveillance line of cases. That goes back to Entick v. Carrington. And you get the same result under the trespass rationale. I also don't think that the sort of general meaning of "search" takes us very far, because the general meaning of "search" is, itself, contested. "Search" has like four or five different definitions. And which definition you use becomes your sort of intuitive common meaning. And so I don't think that takes us anywhere kind of different. It's the same debate, just phrased as if it's the common meaning of the term, instead of something else.

 

      And so an example of this would be, if you go back to the history of the Fourth Amendment, if you're an originalist wanting to know what was -- Congress -- what were the ratifying conventions thinking of when the text was ratified, it was in response to cases like Entick and Wilkes v. Wood, where "search" meant physical invasion, breaking into your house and rifling through your stuff, opening your boxes, opening your locked suitcase — not suitcases at the time, but boxes and containers — and physically rifling through your stuff.

 

That's -- because it's not just "search." The textual language is "search of houses, persons, papers and effects." So it was -- search of a house was physical invasion into the house. And so the framers of the Fourth Amendment weren't worried that the king's officials were going to show up at someone's house and observe it from public. They were worried about the king's officials breaking in, and whether the warrant they had authorizing the trespass into the house was something that was sufficiently particular and based on probable cause.

 

      So, from a historical standpoint, one answer would just be search is physical intrusion. Now, that's possible. And although a lot of us will have the reaction of, "Wait a minute. Technology is going to alter the practical effect of that," what if you can have a technology that can see through walls? And, if you can see through walls, then whether the government can physically intrude gets them to the same place if they can just use this technological device to see through walls. And that was Kyllo.

 

And that's this general -- I think the reasonable expectation of privacy is just sort of recognizing that there are virtual spaces, technological versions of what was, at the time of the enactment of the Fourth Amendment, physical invasion into a private space. And we should recognize those technological alternatives and technological substitutes really, for the original, physical act.

 

So opening someone's mail is technologically very different from opening someone's email, accessing someone's email on a server. But the end result is the technological equivalent. And those should be treated the same way. Well, what rule do you use to get there? I think the reasonable expectation of privacy framework is basically the originalist Fourth Amendment with a technological substitutes take on it to ensure that the Fourth Amendment doesn't become outdated over time. You can get there using different words. You can get there using the text. But I think it's all kind of the same inquiry.

 

      So my own sense is that I hope the Supreme Court doesn't take Tuggle, because I think it's going to be hard for them to figure out what the alternatives are. But once they do take a pole camera case — I'm sure they'll take one eventually — it kind of doesn't really matter that much how they phrase it, in terms of reasonable expectations of privacy, just using the text of the Fourth Amendment. It's the same set of questions. And the question, ultimately, is how are they going to resolve them. And I think they don't need to depart from current doctrine to do that. Because it's all the same sets of options, no matter which sort of doctrinal words they ultimately use. And, so, with that, I'll pass it back.

 

Adam Griffin:  Thank you, Professor Kerr. Let me ask one question of each side and then open it up for discussion, if that works. Josh, so, under your view, you would have the Court adopt some kind of ordinary common meaning of "search." Does that mean that a lot of things would be "search" and that it would, then -- everything would be, all the weight would be on reasonableness? Would that really broadly expand the scope of the Fourth Amendment by having a more broad and capacious view of "search" rather than the more limited or constrained view that Katz has that gives some judicial discretion there?

 

Josh Windham:  Yes. I think it would open up the threshold inquiry a fair amount, such that more courts were looking at more government conduct. I don't think that that necessarily means that more cases would turn out remarkably differently. I think that more cases would have to reach the reasonableness question. So, just to give the example I mentioned earlier about consenting to someone coming in your house, I think if you consent to an officer coming in to look around for drugs, under my theory, that's a search. But it's a categorically reasonable one, because you've consented to it. So a lot of -- I think a lot of the things that are built into the reasonable expectation of privacy framework would bear on reasonableness under the kind of regime that I'm advocating for here.

 

And I just want to add one thing. I don't think it's necessarily true that this all kind of leads to the same thing, no matter what test you use, to Professor Kerr's point. If you use something like the ordinary meaning test that I'm proposing, I think it's definitely the case that Dunn would have come out differently. That would have been a search. And the reason I think that is that it's not the case that -- earlier, Professor Kerr, you mentioned searching of persons, houses, papers and effects. The Fourth Amendment doesn't say searches of those things. It says you have a right to be secure in those things against unreasonable searches.

 

And I think there's a fair construction of the amendment that says, well, the government can conduct a search. And that search could violate your right to be secure in your home, even if they're not breaking the laws of the home. And I think that's exactly what we had in a case like Dunn. So I think that some cases would actually come out differently.

 

Adam Griffin:  Thanks, Josh. Professor Kerr, you can respond to that. And, then, also, the question that I had for you was you gave kind of, sort of two working principles to start. There's the sort of original rule — the original expected application — physical intrusion of the house. But there's this background rule that anything in the public doesn't violate the Fourth Amendment. The eye -- what's the phrase? The eye can't violate the Fourth Amendment? Or the eye --

 

Prof. Orin Kerr:  -- no trespass.

 

Josh Windham:  [crosstalk 00:25:09]

 

Adam Griffin:  The eye can't commit a trespass. And then you have the new technology problem, that -- are we going to hold the ordinary public meaning of "search" and then we have to kind of define what kind of cameras violate, or what kind of cameras search and what kind of cameras don't? And my question was why wouldn't that framework work? Why wouldn't it just be, well, any camera, every camera is a search. But then the gatekeeping function falls to reasonableness rather than on search?

 

Prof. Orin Kerr:  Yeah. So let me respond to Josh first. There are a couple things. First of all, on the open fields doctrine, in the United States v. Dunn, I think that's exactly correct, from a textualist standpoint, because the Fourth Amendment is searches of houses, persons, papers, and effects. And all Dunn said is that if you're really far away from the house, it's not a search of the house. Approaching a barn that was 50 yards away from the house is not part of the curtilage, which is the area around the house that counts as the house. So, I think, textually, that's still correct, under that approach.

 

      And, I think, more broadly, what's the sort of ordinary public meaning? I don't know if -- I don't understand why we'd want ordinary like todays' meaning. I think, from an originalist standpoint, we would ask ordinary historical meaning. Maybe that's the same. But at least we should be asking the historical question. And I think it's this -- I don't see -- I don't see the, what Josh is suggesting as the ordinary meaning, in the following sense.

 

       Let's say that a police officer is dispatched to a house. And the following conversation occurs between the officer who was dispatched to the house and his boss later that day. "What did you do today?" "I was dispatched to visit 123 Main Street." "Oh, you went to 123 Main Street. What did you do then? Did you search it?" "Yep. I searched it, all right." "Oh, wow. What did you find?" "Nothing." "Well why?" "Oh I just looked at it from the outside, from the street." "I asked if you searched it."

 

We normally say searching a house means physically searching a house, entering the house. And so not sort of to observe it. It's like I searched it on Google Maps or something like that. We would normally think of searching a physical thing for evidence as meaning going into the thing. That's the historical meaning that -- I'm not saying that it only has to be that. But that's, I think, the ordinary meaning in that context. And so I think the constitutional text is not "search for." The "for" is missing. And the history suggests it's this is really searches of those things. The right to be secure against unreasonable searches and seizures in those places, not for those places.

 

      In terms of what happens if you move everything to reasonableness, well, one possibility is you just completely reconstruct everything. And, I think, actually, current consent law, which Josh also mentioned -- I think current consent law is what he wants that to be, in a sense of, if an officer asks for a consent to search and an individual gives the consent, it is a reasonable search. There's still a reasonable expectation of privacy in the place because it's not open to the public. If it's open to the public, like a store, then it would not be a search. That's like Maryland v. Macon. But if it's just a consent search, it's a reasonable consent search, a reasonable search by virtue of valid consent. So I think that is actually the current doctrine.

 

      But, in terms of why not to do it more broadly, I think you just end up recreating the questions. What you lose is your bright-line doctrine of what is a reasonable search, where currently you have a search is reasonable if the government has a warrant or a warrant exception applies -- and, granted, there are a lot of warrant exceptions. And some of them aren't all that clear. Welcome back, Adam.

 

But, nonetheless, otherwise, you'd end up asking, I gather, something like this. Let's say everything becomes a search. Or searching for something becomes a search. The government was dispatched to 123 Main Street. As soon as -- the second he looks at the house, he has searched it. But, then, maybe you say that's reasonable. Well, what's the moment that it's unreasonable? Maybe the search becomes unreasonable without a warrant as soon as he steps onto the curtilage without implied license. Well that's just the same inquiry, just taking the search inquiry into the reasonableness inquiry.

 

So it just seems to me, ultimately, it's moving boxes around in a way that I don't understand why we would want to do that, in that it oversimplifies what is a search, and creates some sort of arbitrary line there, and then dramatically complicates this question of what is reasonable. And I think it just makes more conceptual sense to take the "what is the act?" which is the search, and then "what is the justification?" which is the reasonableness question, and keep those conceptually separate. It's not clear to me that you gain a lot by combining them.

 

Adam Griffin:  Well, I think that makes sense. I don't think that the argument would be to combine. I think it would be the search is a discrete inquiry. And, correct, if someone just walked by and observed the house, it might not be a search. But if they went to look at the outside of the house to gather some information from the outside of the house, then that might be a search. Whether it's reasonable or not would be a separate inquiry.

 

You would then look to whether you violate common law or positive law, or whether you had a reasonable expectation of privacy. The search inquiry would be, did you look at the outside of the house to try and get information? If you tried to get information from the outside of the house, it's search. But, then, is it reasonable would be, did you violate the common law, or did you violate the positive law, or did you have a reasonable expectation of privacy in the outside of your house?

 

Josh Windham:  Just to add one thing to that -- so I generally agree, Adam, with that. But there's also -- that highlights a distinction between a lot of the cases cited in the Seventh Circuit's opinion in Tuggle, just to bring us back to Tuggle a little bit. There's a lot of citations to these cases that basically say, well, the Fourth Amendment doesn't require police to shield their eyes when they happen to be walking by a home. That is just markedly different from mounting cameras around a home and staring at it for 18 months and then recording all of it. Right?

 

And there's something about the intentionality of that activity that really gets at the core of what the Fourth Amendment is about. And you see that in both some reasonable expectation of privacy cases, but you also see it in the Jones/Jardines framework, where it's like physical intrusion for the purpose of obtaining information. So there's kind of an intentionality and purpose element to all of this that I think is captured, at least in the test I'm proposing.

 

       But I wanted to -- just one more thing. I know that we could probably talk all day about this stuff. I had a question for Professor Kerr that I was thinking about when looking through some of these cases again. And I just wonder, Professor, what you think of Kyllo itself. Because -- or whether you think the Seventh Circuit's characterization of Kyllo is correct. Because Kyllo purports to construe Katz.

 

But, of course, Justice Scalia himself, who wrote Kyllo, was very Katz skeptical. And so it's hard to tell. Do you believe that Kyllo is like a faithful construction of Katz? Or do you see Kyllo as maybe like a weird kind of bastardization of Katz? Because, ultimately, the Seventh Circuit's concern is that Kyllo, which purports to apply Katz, is actually like this erosion cycle. That, as technology advances, we lose. We just ever-increasingly lose Fourth Amendment rights. And I just kind of wonder what you think about, given your recent article, what you think about all that.

 

Prof. Orin Kerr:  Yeah. I mean, I think it's tricky. Because the boxes here are, themselves, really murky. And then it becomes, like, how do you construe this one murky box against this other murky box? And trying to come up with an answer is -- what is the correct way to read them actually becomes kind of an exercise in faith as much as it is doctrinal description.

 

But it seems to me that Kyllo was -- it's not obvious to me that Kyllo is really shedding a lot of light on pole camera surveillance. In the sense that, first, Kyllo says it's about revealing details of the insides of the home. And, here, we're talking about revealing details of the outside of the home. So you can just say on that ground, Kyllo is completely irrelevant to pole cameras, because it's not about revealing the inside of the home.

 

      And then Scalia had the point about, well, if it's in general public use, it's a little bit -- it's different. And, first of all, that was a possible claim. It's not obviously embraced in Kyllo. So it's not obvious that that's the rule that emerges, or if that's an -- at least in those circumstances, it clearly applies. We'll debate that in other circumstances where it doesn't.

 

But I took Scalia to really be concerned with, well, what do you do about, like, flashlights and eyeglasses? And there are all sorts of technological tools that the government has traditionally used to find out the details of the inside of the home that nobody thought were objectionable. How do you say that is okay, but using the thermal imaging device is not okay?

 

      And I think Scalia's answer is like, this is new. This is a new technology and it's changing everything. And we're going to treat that differently. How are we going to distinguish new technology from old technology? Well, it's not in general public use. Maybe that's the line. And he took a reference point from some prior cases.

 

Josh Windham:  Well, to be fair, I think he's trying to capture -- I mean, Kyllo talks about social expectations. For better or for worse, that's the language Justice Harlan uses. And so I think what he's trying to do is at least key onto some of that language about, well, if it becomes ubiquitous, then social expectations are changing. And I think you've got a different kind of view of Katz than maybe that. But, I mean, how do you thread that needle, presuming Katz says what it says? I mean, do you kind of not take Katz at its literal word?

 

Prof. Orin Kerr:  No. I mean, I do take -- well, I mean, I think, Katz -- there are not a whole lot of literal words. Katz is really [inaudible 00:34:56] concurrence from Justice Harlan. And it's like two paragraphs. And then everyone's been trying to infuse meaning into that. And I think the counter-argument to that reading of Kyllo is Carpenter, the Supreme Court's 2018 case on cell site location information, where the Court takes the exact opposite view of it and says that it's the fact that the government can invade privacy so easily is the reason for why there needs to be a reasonable expectation of privacy in cell site location information.

 

So, that is like, you don't have a reasonable expectation of privacy, therefor you must have a legal reasonable expectation of privacy. What the facts give away, the law gives. And both Kyllo and Carpenter are consistent with this equilibrium adjustment idea of having rules that are protective against new technologies that are giving the government powers it didn't have before.

 

And then the line about general public use becomes kind of a potential line-drawing that Scalia had. And this is sort of the -- I think Kyllo -- Justice Scalia once said that he hated Fourth Amendment cases. He hated writing them because they were all so fact-specific and it just -- he never like them. A lot of times, in his Fourth Amendment cases, would have dueling footnotes where you're like, wow, that's really what the debate is about.

 

And, I think, to some extent, that's true of Kyllo and it's true of Jones, where there's a lot that's undecided in those cases that's really important. It's hinted at in footnotes, and you kind of wish there was more of an opportunity to figure out like where the Court was going. But I think the answer, ultimately, to what to make of Kyllo is that Carpenter takes that same -- some of the same concepts. And Carpenter is more expressly about reasonable expectations of privacy and just goes in the exact opposite direction. And, so, you can kind of take that in either way, I think.

 

Adam Griffin:  I think that -- that's a great answer, very substantive. I think that takes us into our questions. I want to make sure we get -- we have six questions in the queue. I want to try to get to as many as we can. The first one says, "Does Carpenter v. United States do anything to help Tuggle's case? In that case, the Court held that government collection of extensive amounts of cell data over a long period of time was a search, even though the data was turned over to a third party. Could this be extended to extensive surveillance in public?"

 

Josh Windham:  Well, I mean --

 

Prof. Orin Kerr:  Go ahead.

 

Josh Windham:  Go ahead, Professor.

 

Prof. Orin Kerr:  Okay. Well, yeah. I think, if you're on Tuggle's side, Tuggle is another Carpenter. And so that's the argument that -- and what's interesting -- so, one thing about Carpenter. Carpenter says you have a reasonable expectation of privacy in the whole of your physical movements. No majority opinion of the Supreme Court had ever said that or even suggested that, but the Court announced it, based on some concurring opinions in Jones, which themselves had been a departure from prior law. So now we have this idea that maybe you have a reasonable expectation of privacy in certain facts, which seems divorced from the text, because it's no longer specifically.

 

But you could make it about houses, in the context of pole cameras. And so maybe if you have a reasonable expectation of privacy in the whole of physical movements, you have other new kinds of reasonable expectations of privacy. And so I think Carpenter is a lot of basis for Tuggle's claim.

 

At the same time, you can flip that. The government should be arguing that Carpenter says you have a reasonable expectation of privacy in the whole of your physical movements. And the nature of a pole camera, its essence, is that it is fixed. It is from a pole. It is from a spot, not observing the whole of physical movements. And that just gets to the uncertainty about what Carpenter meant by whole of the physical movements. We don't know. It's only one case.

 

But that could kind of go in different directions. And I think Carpenter is going to be really in play in the pole camera cases. And then one last thought, and Josh, sorry, I'll send it to you. One fascinating part about Carpenter is the personnel of the Court has changed since Carpenter in 2018. So we don't know where the majority is on a Carpenter-like case on the current Court, because that majority is no longer there. And so who lines up where is going to be super interesting to find out.

 

Josh Windham:  Yeah. And I -- just to add one thing, a lot of the debate surrounding what is the post-Carpenter world and how does it all work now has to do with prospective and retrospective information. So Carpenter talks about historical cell site location information, right? And one thing the Seventh Circuit said in Tuggle, which I think is a little bit bizarre, honestly, but the Court said, "Well, this isn't historical information. It's live. It's a live stream." So it's real-time tracking of -- it's, of course, a silly distinction because it's all recorded and they can watch it all back. So I didn't quite grasp what the Seventh Circuit was doing there.

 

      But, in any case, I think this question of prospective and retrospective information tracking is a big part of the discussion right now about what Carpenter really means.

 

Adam Griffin:  So our next question is, "If the Court were to rule that all cameras are a search, how does this possibly impact law enforcement's use of body cameras?"

 

Josh Windham:  Yeah. Well, I mean the Seventh Circuit was concerned about body cameras in its opinion. One thing it kind of flagged is that we're closely approaching like a ubiquity -- ubiquitous-camera world, where traffic lights and convenience stores and police badges and cars and doorbell -- doorbells, the ring cameras, all of that have -- there's cameras in all of that. We all have cell phones.

 

Now, the question of body cameras -- I think that, in my view, is probably going to constitute a search if it's for the purpose of investigation. So, just to give you an example, if an officer is rooting around in someone's backyard and has a body camera on and the purpose of having the body camera on is to obtain information or evidence of a crime in the course of doing that, that, in my view, is a search.

 

If they just happened to be walking down the street and there's a body camera mounted on them, in part, as a defensive mechanism against if somebody accuses the police of doing something wrong. They want to have footage to prove that they didn't do something wrong. That's not an investigative purpose at that point. So I think purpose actually does play a big part in, at least under my theory, of whether a search has occurred.

 

Adam Griffin:  Professor Kerr?

 

Prof. Orin Kerr:  Yeah. I think investigative purpose is -- it's hard to say investigative purpose should make a difference, as compared to just intent to obtain information, at least it seems to me. Because then what is an investigative purpose? Well, that line is tricky. What are you investigating? The government's always looking with intent to obtain information. It's sort of the nature, I think, of that.

 

      I think once you say that, this is the challenge of saying all pole cameras or the category of technology is a search. You then need the judges to give a constitutional category to define what is this thing which is a search. And the way technology works, it doesn't fit categories. We don't have -- it's not like there's one product for sale, which is pole camera and that everything else is technologically different and you can say the Court is ruling for pole camera. So you either define it based on how it's used, or its technological abilities. And then you run into all sorts of problems of defining other things. Can you do that? Can you do that? And this is, I think, a challenge.

 

      This is why it would be helpful to have more percolation, more lower courts grappling with these issues, that say there's a search and try to figure it out. And we've talked about the Seventh Circuit's opinion. The Seventh Circuit's opinion is kind of all over the map. I think it's grappling with these ideas. And it's like how about this? How about this? I don't know. And, ultimately, it reaches this conclusion. Okay, this is not a search. But it's such a hard problem of trying to come up with the line drawing once you say it is a search.

 

And I'm not against that, I should say. I just think it's a really hard line-drawing problem to identify that which would require a warrant or would be a search and require constitutional oversight. A statute can come up with the sort of arbitrary definition, then you can update the arbitrary lines. And over time, when technology changes, you can have a different rule. Bit it's hard to do that through constitutional doctrine, to have like an arbitrary technological definition.

 

Adam Griffin:  [inaudible 00:43:18]

 

Prof. Orin Kerr:  Sorry. Go ahead.

 

Adam Griffin:  So, is one way to define it is that whenever a camera is installed for the purpose of investigative or acquiring information, then whatever the technological device, if it acquires information, then it's a search. And then the other option is defining the technological advice -- the technological device. So if it follows you around everywhere you go, like in Carpenter, it's a search. If it's just stationary, maybe it's not a search. It would be kind of a fact-specific inquiry versus a definition if it's acquiring information for investigative purpose or if it's acquiring information then it's a search. So there are two kind of different ways to look at that.

 

Prof. Orin Kerr:   Yeah. I think you can define the technological tool, or you can define how the tool is used.

 

Adam Griffin:  Right.

 

Prof. Orin Kerr:  And how the tool is used could be how many days it's used. This is like this mosaic idea that you look at the overall amount of surveillance that occurs. Or can the tool turn directions and focus? Does it have something to help it look at night? You could try to have some definition that way.

 

      But it's tricky, too. Even if you just have a means of creating copies of visual appearance that is installed with intent to obtain information, well, what's installed? Is a body camera installed? Is a camera on a car installed? Is it permanent installation? What if it's in -- as soon as you say, "Well, how about a permanent installation rule?" Well, okay, the government will say, "We're only doing this for a week." And then you've created the "how is it used" as part of the definition of the tool.

 

It would be a little bit -- it would be a weird world if the rule were every camera used by government is a Fourth Amendment search, because you'd either need to say that government is not allowed to have the cameras that everyone else is using, or, there's some special reasonableness rule for government cameras, which ends up just sort of recreating the problem in a different box.

 

Adam Griffin:  So we have our -- thank you for that. So we have our next question from Isaiah McKinney. He asks, "Would the founders/English common law have understood a soldier standing outside of someone's house continually to be a search?"

 

Josh Windham:  I think that's a historical question. I don't know the answer to it. Honestly, it's one that I think it's worth researching when we get kind of into these historical fact patterns. But I'm inclined to think that probably the founders wouldn't have been concerned with that, unless it were the case that the activity was some kind of common law tort.

 

Prof. Orin Kerr:  Yeah. We don't -- here's what's tricky is we have the Fourth Amendment was enacted in response to a very specific set of historical events and decisions that were very narrow in their fact pattern. It was physical intrusion, breaking into a person's house and rifling through their stuff, and breaking into their boxes. And so what would the framers have thought about officers standing outside someone's house for a long period of time? Well, no one ever expressed an objection to it. Either it never happened, or it happened and no one cared. We don't know.

 

      Even the idea of part of that, like the idea of curtilage around the house, which is today the framework which we bring back to the Hester case in 1920 — which Justice Holmes said was common law, but I don't think that was true — was that there's curtilage around the house, and the officer can't go into the curtilage. And that would have been considered a trespass. We don't really have evidence that historically that was understood either. That's kind of a 20th century gloss on Blackstone, which, great, it's common law, but not in the same context.

 

      So I don't think we have -- I think the "what would the framers think about these fact patterns" just sends us -- it just becomes another way of channeling the question of what do we think about them? We, who have studied the framers. And so I don't think it ends up telling us, because we just have so few facts on this.

 

      And the broader challenge, I think, here, is that what is a search was not something that anyone cared about in the enactment of the Fourth Amendment. The Fourth Amendment was all about general warrants. That was the problem. That was what everybody talked about is when the government is breaking into someone's house, when the government is breaking into someone's workplace, is the warrant they have something that's based on probable cause? Is it narrow to certain evidence? Or are they just breaking into everyone's house? That was the obsession, general warrants.

 

And this earlier part of the constitutional text about unreasonable searches and seizures -- no one talked about that. And so that's a challenge. There's not a history here. And there's not a set of practices we can a really look to. We've got a fact pattern. And then we have the question of what's the level of generality to apply to the principles of the fact pattern. And that can be construed lots of different ways.

 

Adam Griffin:  [crosstalk 00:48:13]

 

 

 

Josh Windham:  And this is actually a part of -- what you're saying there, Professor Kerr, is part of why I don't think that the -- it ends up being the case that a lot of Fourth Amendment cases just turn on the threshold question. And your point that the framers weren't really concerned with the definition of "search" and weren't really debating what it meant signals to me that that's not where the rubber should really meet the road in Fourth Amendment land, which is why I'm kind of advocating for a version of this that would actually place more substantive burden on the reasonableness inquiry. I understand that it's relatively simple right now in the sense that we just say warrants are required and here are a few exceptions. But maybe it gets more complicated if we actually have to take a harder look at more government conduct.

 

Prof. Orin Kerr:  Yeah. And then the flip side of that is that the whole idea of police didn't exist at the time of the framing. So this is an added complication. And then warrants, it looks like, were only obtained in stolen goods cases. So the whole search warrant process, if you look back in, like, the common law treatises, there's thousands of pages of common law rules. And search warrants and -- there's like three pages. No one cared about this stuff. It was just for stolen goods. There were no professional police officers. So all of this is kind of a modern problem where we've got a couple historical examples. But the history is not giving us a lot of answers I think one way or the other.

 

Adam Griffin:  I think that's -- Davies' large article on the Fourth Amendment talks a lot about the history of policing at the time, the discretion officers had, and that the general warrant concern came from the fact that they thought common law had policed officers' discretion to such a great degree that the general warrant was the big exception, that warrants were kind of already policing it, because they didn't have the discretion to act without a warrant to begin with.

 

So it was the general warrant that was the real problem they were focusing on. But, then, when you get into a world where you have a lot of police discretion today that didn't exist at the founding, does that first provision step in and cabin the discretion of officers that didn't exist at the founding because the common law bound the officers' discretion, and whether those common law rules were somehow fixed by the Fourth Amendment and cabin that discretion today.

 

      Our next question is, "Orin mentioned the mosaic theory as one way to distinguish certain camera searches from other camera searches. It seems like the Jones concurrence and the Carpenter case have already adopted the mosaic theory for long-term gathering of public information and it is not a stretch at all to apply their holdings to pole cameras. Why do you think that the Court would not simply apply Carpenter and find that the Tuggle pole camera was a search?"

 

Prof. Orin Kerr:  Yeah. Carpenter expressly declined to address this issue. So they -- that was a case involving a certain amount of information gathered, a certain number of days of cell site location information. And the Court, in a footnote, said, "We're not addressing whether it would be a search if it were less than this number of days." And so the reason why I think that the mosaic theory is still up in the air is that that is the mosaic theory question.

 

Is there some small amount of surveillance is not a search and it only becomes a search if it's a lot of surveillance? Or is it just cell site location records? One data point is a search, and I don't care whether it's one data point or a million data points. That's how particular the warrant is. But it's all a search. Or is it like, well, an hour is okay or a day is okay. And lower courts have been trying to figure this out. And they're dividing over this question.

 

So I think -- you had the Jones concurrences, which were like a paragraph, suggesting dramatic changes in the law. Each of them had these sort of really novel ways of thinking about it. They're not majority opinions. Carpenter then, takes pieces of those and forms a majority view that there's a new kind of reasonable expectation of privacy in the whole of visible movements, but doesn't answer whether it depends on how much surveillance applies in that case.

 

      Now, you could take the view that Carpenter itself is grounds to say that pole camera surveillance is a search. And that could be also short-term pole camera surveillance. Or you could say there's a mosaic view and it's -- I think Carpenter neither accepts the mosaic view or rejects it. It's just -- it doesn't answer it one way or another.

 

      So, yes, it will definitely be part of the mix when the Court takes a pole camera case. I just don't think that it's resolved yet in the cases.

 

Josh Windham:  Yeah, which is why the Seventh Circuit said "The Supreme Court has never told us we must apply the mosaic theory. And, so, what do we do here with Carpenter, given what Carpenter says?" And the issue that the Seventh Circuit has with relying solely on Carpenter and even Jones is that these are cases involving movement in public spaces, and what can we discern about a person's life from the whole of their movements?

 

And, as the Seventh Circuit notes, this case isn't about movement. It's about non-movement. It's about Tuggle being in his home for the most part or leaving his home at certain times of the day. But he's not being tracked as he goes about his life outside the home or in the home. So it's hard to really say, okay, this case is squarely governed by either Jones' or Carpenter's mosaic elements.

 

Adam Griffin:  So we have -- I think this will be our last question. And so if you kind of want to work closing remarks into this, that might be good. So it says — and I think this kind of plays into to the positive law model, which Will Baude and Professor Stern have posited and Gorsuch and Thomas have cited in Carpenter — if someone were standing on the corner, staring at my house for weeks on end and taking notes, I'd call the police. And the police would come. They wouldn't just tell me not to worry about it. In other words, the "eyes can't trespass" idea pertains to the eyes of the passer-byer, not the eyes of a stalker.

 

And so if we get into kind of could a private citizen install this camera and surveille your house, you would probably run into some kind of positive law protection against stalking. And how does that kind of protection play into this idea that the eyes can't trespass? This is all just in public view so it's fine. Does something like a tort of stalking or something like that come into play here?

 

Josh Windham:  Well, I think, at least in my view, whether or not it's legal by common law or by statute is irrelevant to whether it's a search, because I think "search" itself is a word that has an ordinary meaning that we all understand and can use every day. And I don't think that there's really any difference between now and the founding on this front. Even though, as Professor Kerr notes, there's multiple definitions of the word, I think what we do when we're looking at constitutional provisions that protect individual rights, just like in the First Amendment context, is that we construe these terms broadly and as liberty-protecting to the extent that we can.

 

      Now, as to whether the existence of a tort or a statutory prohibition bears on the Fourth Amendment analysis at all -- maybe, in the context of whether a warrant should be required, whether it's reasonable, that kind of thing. But I don't think it bears on whether a search occurred.

 

Adam Griffin:  So the breach of positive law might make it unreasonable, but it wouldn't change whether it's a search or not?

 

Josh Windham:  Yeah. That's at least my view.

 

Adam Griffin:  Professor Kerr?

 

Prof. Orin Kerr:  Yeah. So I think there are two separate questions. I think there's the -- first, it's always a viable option for a polity, acting through its elected branches, to regulate law enforcement by saying, "No one can take this step. No one can do this." Or it could be a rule expressly about what the government can do. It could be a general rule that applies to law enforcement as well. And so one thing you can always have the legislature say no one's allowed to do something.

 

      That's separate from the Baude and Stern, very innovative, novel proposal that any violation of positive law should make something a cert. That's the true sort of, I think, the ultimate, living, breathing, constitutional novel theory, enacted in 2016, of not really relying on traditional Fourth Amendment materials, but on sort of a view of the state. The proper role of the state, in their view, was as long as a rule applies to the public, it can't exempt the government. And it doesn't matter -- they have a sort of complicated rules structure for what would be a search. It doesn't seem to be rooted in any of the traditional Fourth Amendment text or history or precedent that we would normally look to.

 

      So, my own sense is that, absolutely, legislatures can enact regulations about what the police can do. And that's great. And that's fine. That's what a lot of privacy laws do. But the violation of some positive law should not be the test for what is a search.

 

      I would also add the police do lots of things that we would not -- that we would call the police if a private citizen did. And that -- I think I would call the police if I saw a private citizen do that test. It would be an odd test for a search. And so I don't think that should be the inquiry. That can be a test for what is within a social norm, for example, in a context where there's kind of consent, and this was the use that, for example, in Jardines. The Supreme Court uses that for knowing what the implied social license is for knocking on a door. That's a particular situation where people come to knock on a door and there is kind of a norm for that particular thing that we can say there's an applied license or not an applied license.

 

But I don't think, in general, we'd want to have a test where, if a private party did what a police officer did, would we call the police. There's no obvious reason why that would be a search under the Constitution, as compared to something we would want to regulate by statute.

 

Adam Griffin:  Well, thank you both. I think we've run to the end of our time. But it's been a wonderful discussion. I so appreciate your expertise on this. And maybe we'll have you back if the Court grants certiorari to talk more. I appreciate so much the coverage of this issue.

 

Prof. Orin Kerr:  Sounds good. This was fun.

 

Josh Windham:  Thank you very much.

 

Evelyn Hildebrand  Thanks very much everyone. And, on behalf of The Federalist Society, I want to thank our experts and our moderator for the benefit of their valuable time and expertise today. We welcome listener feedback by email at [email protected] Many thanks to our audience for tuning in and participating this afternoon. And, without further ado, we are adjourned. Thank you

 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s practice groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.