The Fourth Amendment at the High Court: Last Term in Review and the Future

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The Federalist Society's Criminal Law and Procedure and Environmental Law and Property Rights Practice Groups bring you a roundtable discussion with leading Fourth Amendment scholars and litigators reviewing the major Fourth Amendment decisions from the 2020-2021 term and previewing the future of the Fourth Amendment at the High Court.  What is the fate of Katz, the third-party doctrine, and the exigent-circumstances exception to the warrant requirement?  What is the best method of interpreting the Amendment and will we see a revival of its original meaning?  Four Fourth Amendment experts review:

  • Caniglia v. Strom, a unanimous opinion written by Justice Thomas rejecting the warrantless search of a home under the “community caretaking exception.”
  • Lange v. Caniglia, an opinion written by Justice Kagan rejecting a categorical exception to the warrant requirement for a fleeing misdemeanant.
  • Torres v. Madrid, a 5-3 decision by Chief Justice Roberts with a resounding dissent by Justice Gorsuch, debating what constitutes a "seizure"--is mere touch sufficient or must an officer take actual possession?
  • Bovat v. Vermont, Justice Gorsuch, joined by Justices Kagan and Sotomayor, dissenting from the denial of certiorari in a case involving the “knock and talk” exception to the warrant requirement.
The last term was a busy one for the Fourth Amendment and no doubt many questions remain in this important area of constitutional law.  Join the nation's leading scholars and litigators as they discuss the most recent developments in Fourth Amendment law and preview the Amendment's future at the High Court.
Professor Jeffrey Bellin, Mills E. Godwin, Jr., Professor of Law and Robert E. and Elizabeth S. Scott Research Professor at William & Mary Law School.
Professor Laura Donohue, Anne Fleming Research Professor; Professor of Law at Georgetown Law.
Robert Frommer, Senior Attorney, Institute for Justice.
James K. Vines, Partner, King & Spalding LLP
Moderator: Adam Griffin, Law Clerk, U.S. District Courts; former Constitutional Law Fellow, Institute for Justice


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



Nick Marr:  Welcome, everyone, to this Federalist Society virtual event, as this afternoon, January 10, 2022, we’re having a discussion of the Fourth Amendment at the high court, last term in review and the future. I’m Nick Marr, Assistant Director of Practice Groups here at The Federalist Society. As always, please note that expressions of opinion on today’s call are those of our experts.


      We’re joined by a terrific panel. I’m just going to introduce our moderator, and he’ll bring it from there. We’re very pleased to be joined this afternoon by Mr. Adam Griffin. He’s a law clerk right now in federal district court in North Carolina, I believe. He was formerly a constitutional law fellow at the Institute for Justice. And he has kindly helped organize this program. So, without further ado, Mr. Griffin, the floor is yours. Thanks very much for being with us.


Adam Griffin:  Thanks, Nick. And thank you to The Federalist Society for hosting this program, and to our speakers, and to everyone who is on the call today. I am a member of the Environmental Law and Property Rights Practice Group. And this panel is hosted by that group and co-hosted by the Criminal Law and Criminal Procedure Practice Group. And thank you to that practice group for assisting us in this panel.


      Today, we’re going to bring to you a roundtable discussion with leading Fourth Amendment scholars and litigators, reviewing the major Fourth Amendment decisions from the previous Supreme Court term, the 2020 and 2021 term, and previewing the Fourth Amendment at the high court in the future. Serious questions remain about what the future of the Fourth Amendment looks like at the high court. What is the future of Katz, the third-party doctrine, and the exigent-circumstances exception to the warrant requirement, just to name a few?


      Also, what is the best method for interpreting the Fourth Amendment. And how will interpretive methods affect the future of the Fourth Amendment at the high court.


      There are four major cases that we’ll be reviewing today: Caniglia v. Strom, a unanimous opinion written by Justice Thomas, rejecting the warrantless search of a home under the community caretaking exception; Lange V. Caniglia, an opinion written by Justice Kagan, rejecting the categorical exception to the warrant requirement for a fleeing misdemeanant; Torres v. Madrid, a 5-3 decision by Chief Justice Roberts with a dissent from Justice Gorsuch, debating what constitutes a seizure. Is it a mere touch sufficient? Or must an officer take actual possession?


And then, finally, Bovat v. Vermont, which was a dissent from the denial of certiorari in a case involving the ‘knock and talk’ exception to the warrant requirement, written by Justice Gorsuch and joined by Justices Kagan and Sotomayor.


      The last term was busy for the Fourth Amendment, and no doubt many questions remain in this important area of constitutional law. Please join us with these leading scholars and litigators as they discuss these four cases and the future of the Fourth Amendment.


      Our first speaker is Professor Jeffrey Bellin, who is the Mills E. Godwin, Jr., Professor of Law, and Robert E. and Elizabeth S. Scott Research Professor at the William & Mary School of Law. He specializes in criminal law, criminal procedure, evidence, law and technology. Professor Bellin received his undergraduate degree from Columbia University, and his law degree from Stanford. After graduating from law school, Professor Bellin clerked for the honorable Merrick Garland at the U.S. D.C. Circuit. Following his clerkship, Professor Bellin served as a prosecutor with the United States Attorney’s Office in Washington D.C., and practiced with the San Diego office of Latham and Watkins.


      He has received numerous awards for his outstanding teaching and has published numerous scholarly articles in esteemed law reviews across the country. Most notably for our purposes, he has published an excellent article “Fourth Amendment Textualism” in the Michigan Law Review.


      Professor Laura Donohue is the Anne Fleming Research Professor, Professor of Law, at Georgetown Law. She is the Director of Georgetown Center on National Security and the Law, and Director of the Center on Privacy and Technology. She writes on constitutional law, legal history, emerging technologies and national security law. Her most recent book, The Future of Foreign Intelligence: Privacy and Surveillance in a Digital Age, was awarded the 2016 Chicago-Kent College of Law/Roy C. Palmer Civil Liberties Prize.


Her work has been published in numerous notable scholarly journals. And, most important here, she’s published the original Fourth Amendment in the University of Chicago Law Review; "The Fourth Amendment in a Digital World," in the NYU Annual Survey of American Law, and she submitted an amicus brief in a case pending before the Supreme Court right now with important Fourth Amendment implications, FBI v. Fazaga.


      Robert Frommer is a senior attorney at the Institute for Justice and the head of the Institute for Justice’s project on the Fourth Amendment. He is currently suing to protect the Fourth Amendment rights of property owners in Tennessee, Pennsylvania, and California. He also submitted amicus briefs in three of the four cases we will be discussing today: Lange, Caniglia, and Bovat.


      Mr. Frommer also litigates to protect economic liberty, free speech, and property rights across the country. Before joining IJ, Mr. Frommer was an attorney with the Washington, D.C. office of Gibson, Dunn & Crutcher. He is a former law clerk to judge Morris Sheppard Arnold of the U.S. Court of Appeals for the Eighth Circuit. And he received his law degree magna cum laude from the University of Michigan Law School in 2004.


      Thank you to all of our speakers for being here today to talk with us about this important topic of Fourth Amendment law at the high court. We’ll begin with Professor Bellin and the case of Torres v. Madrid.


Prof. Jeffrey Bellin:  Okay. Thank you, Adam. And thanks for being for being here, everyone. So, this case comes out -- I’ll just give you a little summary of the case. I've got seven minutes for this initial blurb, and then some implications to talk about or to think about.


      So this case came out of a police shooting in 2014 in New Mexico, where some police officers were serving a warrant and they encountered Roxanne Torres in a parking lot. She reacted to their presence by trying to get away very quickly, and the officers shot at her car as she was fleeing. The allegations suggest maybe the car was coming towards them. So they shot at Ms. Torres and hit her twice, which is actually very important for the fact pattern and the question that comes later.


But she continues driving away, actually gets about 75 miles away to a hospital in another jurisdiction, where she's treated for her gunshot wounds. And so she then sues the police, saying that they violated her right not to be seized unreasonably. And so the Fourth Amendment, as you know, applies to searches and seizures. And the question in this case is, was there a seizure? Because the lower court had rejected her suit, saying there was no seizure at all, for the kind of intuitive idea that she was never stopped. She was shot, but she continued to make her escape.


And so, since she was never kind of brought into the possession or the control of the officers, the courts below had said that there was no seizure at all. And so that meant she couldn't continue with her lawsuit which claimed that there was an unreasonable seizure, if there no seizure at all.


      And so the case is very important, because, as it's one of the two gateways to the Fourth Amendment, is search and seizure. And so one of them here is the seizure, and what exactly constitutes a seizure. And is shooting someone who continues to escape a seizure? And what was interesting about this case is there was an earlier case called Hodari D., which had said that merely touching someone would count as a seizure, even if they continued to escape.


      And so the case seemed like -- if the Court was going to follow that case, the Hodari D. case, which was an opinion by Justice Scalia, for -- I can't remember if it was a majority or unanimous, but a very big majority of the Court had said this. And so, with the Court, kind of followed the dicta in this earlier case by Justice Scalia. And, in the end, they did. And the Court decided in Torres v. Madrid that this was a seizure, in an opinion by Chief Justice Roberts, under the same reasoning that I just mentioned from Hodari D, which is that even if you don't succeed in stopping someone, if you touch them, that counts as a seizure, even if you're not successful.


And so, there's a little bit of complication here, because the touch is in a projectile form. But the majority said that's equivalent. Touching someone, punching them, hitting them, shooting them, would all count as some kind of application of physical force. And the majority says if you do that with the intent to restrain someone, that counts as a seizure. And so that resolved the case in favor of Torres, saying that there was a seizure here, which would then send it down, back to the lower courts to decide if the seizure was unreasonable. So her lawsuit was allowed to proceed, and the Tenth Circuit was reversed.


      So there's a couple of really interesting things in my three minutes that I'll just touch on before I appear again in later segments. One is that the seizure case is -- so there's fewer seizure cases these days. But there's a refreshing clarity to them. And if you say like, "Well what's the Court doing in this case?" it's basically taking the word "seizure" and looking at the facts, and saying, "is this a seizure?" and using seizure in a way that we would understand it.


So the fight here is like Justice Gorsuch saying, "No, it's not a seizure, because she wasn't under their control. She kept going. How can you seize someone who keeps going?" And the majority saying, "Yes, it was a seizure." And their answer to Justice Gorsuch's intuitive idea is, "But it was just a momentary seizure." So she was just seized in the moment when the bullets were hitting her. And then, when she kept going, she wasn't seized anymore. But there was a seizure in that moment, and she can sue for that momentary seizure when the bullets hit her.


And one of the ways that I think about this -- that actually makes sense to me, and one of the ways to think about it is it's the shooting that make this a little more complicated than it otherwise would be if the officers had instead kind of punched her to a degree of causing the physical harm that the bullets had caused. I think it would be easier to say, "Well, yeah. During that moment, when they were kind of assaulting her, she's seized." And there's also language from earlier opinions which talk about, like, what do we mean by "seizure?". They say, the application of force that restrains the person's liberty in some way.


And, certainly, if you're shot twice by the police, your liberty has been restrained in some way. And so, in this sense, I think the case comes out in a way that makes sense, but also, the methodology makes sense in that we're saying, "Here's a word, 'seizure,' and it's important to know if that applies in this context. And so we're going to just use the word that we recognize and decide whether these facts meet that word." And there's a kind of refreshingness to that.


Because, the other word — people probably know where I'm going with this — the other word the Court is using in this context, the other threshold, is "search." And the search opinions don't look like this at all. The search opinions seem to not care about what "search" actually means, in the common sense. And they have a different way of thinking about search -- we're going to talk about reasonable expectation of privacy, or this kind of trespass doctrine.


And one of the things in the article that Adam graciously referenced that I do, is I try to say that we could do our search cases the same way that we're doing these seizure cases. We could use the word "search," which is not -- which is a word we understand. We understand "search" just like we understand "seizure." And that's a word we can use. And so we can talk about that later. But that's a little under my seven minutes. So let me stop there, and I'll let the next panelist go.


Adam Griffin:  Thank you, Professor Bellin. Great presentation. We'll turn it over to Robert Frommer to talk about Bovat v. Vermont.


Robert Frommer:  Great. Thanks so much, Adam. Bovat is a deceivingly small case. In the early morning hours of Thanksgiving 2017, a Vermont resident was awoken by a gunshot. So he called the game warden, who began to investigate a possible deer jacking, which is an unlawful killing of a deer at night. So the warden spoke to another man, who said that Clyde Bovat had shot the deer and sold him the carcass before Bovat had left for an out-of-state hunting trip.


Now, wardens were pretty convinced it was Bovat. He had a truck, after all, that matched to the description of the truck involved in the deer jacking. So the wardens went to Bovat's house to investigate.


Now, before we proceed further, it's important to paint a picture of Bovat's place. You drive down a long driveway. The house is to the right of that long driveway, and you access it by a path that branches off. But if you keep going down the driveway, you end up in a large park paving area with a detached two-car garage.


So, when the wardens got there, they didn't see Bovat's truck anywhere. And, rather than take that path I was talking to up to the house, to say hello and try to talk to whoever was home, the wardens went to the garage, where they started peering into a small glass window. And there, they saw Bovat's truck and what appeared to be some animal hair and blood.


After about 15 minutes, the wardens went to the front door and asked Mrs. Bovat if they could enter the garage. And, only after she said no did they then go and apply for a search warrant. And, of course, to support their application, they described what they saw in Bovat's garage.


So Bovat gets charged with deer jacking. He moved to suppress the warden's evidence, arguing that their warrantless entry into the home's curtilage violated the Fourth Amendment. Now, he lost at the trial court, which held, in part, that the garage was in an open field. But then he appealed to the Vermont Supreme Court, which affirmed, in a 3-2 decision. Now, all the justices there agreed that, no, the garage wasn't in an open field. This was definitely in the curtilage.


But the majority held that "portions of the curtilage, like driveways or walkways, which are normal access routes for anyone visiting the premises, are considered semi-private places." Since the wardens had a right to enter the driveway, the majority reasoned, over a vigorous dissent, that their peering into the garage didn't violate the Fourth Amendment at all.


So Bovat takes the case to the U.S. Supreme Court. Although SCOTUS didn't grant the petition for certiorari, three justices — as Adam mentioned, Gorsuch, Kagan, and Sotomayor — wrote a statement criticizing the majority's analysis and its failure to cite, let alone discuss, Florida v. Jardines. Now, for those who may not recall, Jardines says that police may generally enter a property to talk to someone, but they can't exceed the limited scope of the implied license involved.


And what I mean by that is the license that we all, generally, enjoy. It authorizes us to walk up a path, knock on someone's door, say hello, and, if they don’t answer, leave. It doesn't give us a license to start wandering around and peering into people's windows. That's why the three wrote that, "the Fourth Amendment hardly tolerates the sorts of meandering search that took place here. The wardens violated the Constitution, and the warrant they received, premised on the fruits of their unlawful search, was thus tainted."


So that was the end of Bovat. Now, Mr. Bovat was out of luck, but the Vermont Supreme Court got the message. Last year, they overruled Bovat, concluding that "there is no portion of the curtilage that's exempt from Fourth Amendment protection. And that, "an officer may only intrude into a constitutionally protected area subject to an express or implied license. An officer's observational activities within that protected area are limited by the scope of that license."


So we see a repudiation of the Vermont Supreme Court's holding, and a quick retreat by them. And, more generally, I think the statement Bovat — along with the Court's decisions in Lange and Caniglia — reveal a break from sort of the pragmatist approach that has previously dominated the Court. This entire line that you see in the Vermont Supreme Court's decision about areas being only semi-private, comes from the Court's reasonable expectations of privacy framework, which, as Professor Bellin sort of implied, is a muddled mess that lets judges dial up or down Fourth Amendment protections as they see fit.


So, my view is that the way to improve search and seizure protections is to take the Fourth Amendment back to its roots. The original understanding of the Fourth Amendment is that it would broadly secure our persons or property against the threat of arbitrary government snooping. To honor that understanding, the court should jettison the reasonable expectations of privacy test in favor of what I think of as an ordinary meaning test, one that simply asks if the government conducted a deliberate investigative act towards you or your property. And, by property, I mean property as defined by ordinary property and contract principles, as well as causative law.


And, while we're at it, I think the word "reasonable" needs serious reform. The Supreme Court has, over and over again, said its duty is to preserve "that degree of protection against government that existed when the Fourth Amendment was adopted." But, nowadays, courts often decide whether a search or seizure is reasonable by balancing its intrusion on Fourth Amendment interests against the promotion of legitimate government interests.


That balancing approach is decidedly contrary to what the framers envisioned. To them — and Professor Donahue has written about this — whether the government's actions were reasonable depended on whether they were consistent with English and American common law. And, so, by inserting the term "unreasonable," the framers were deliberately tying the scope of government search and seizure power to the bounds of the common law of 1791.


Adam Griffin:  Thank you, Mr. Frommer. Great presentation. Now I'll be moving to Lange v. California. Professor Donahue?


Prof. Laura Donahue:  Great. Thanks. And Rob, I'd love to pick up on some of the points that you raised, actually, in that case, itself. But, right now, we'll focus on Lange v. California. In this particular case, it was a unanimous case that basically held that when the police are pursing somebody for a misdemeanor in particular, that that pursuit does not automatically create the kind of emergency that allows for an officer to follow that suspect into the home without a warrant. So, while there may be many cases in which that is justified, it isn't categorically or necessarily applied.


In this particular case, the facts of the case, we had Arthur Lange, who is a man who lived in Sonoma, California. He was driving home, and he passed a police officer. The police officer heard him playing loud music and honking his horn. He began to follow him. When Lange pulled into his driveway, the officer put on the lights of his car. Lange later testified that he hadn't seen the lights when he entered his own garage to go into his home.


The police officer followed him into the garage, where he proceeded to determine that Lange was inebriated. He did a blood alcohol test. He actually took him to the hospital after he had smelled alcohol on him. And he did this blood alcohol test that found that he had .245 percent, which was more than three times the legal limit.


Now, at trial, Lange contested his conviction. He argued that his Fourth Amendment rights had been invaded when the officer entered his home. But the California Court of Appeals basically rejected that argument, and said that the officer, Weikert, had probable cause to arrest Lange when he pulled into his driveway, and then entered the garage after Weikert had turned on his lights. So it was a hot pursuit argument. He was in hot pursuit of Lange and, therefore, it was justified without a warrant.


Now, Justice Kagan, writing for the Court, said that the doctrine generally eschews these bright-line rules when determining exigent circumstances. So, in terms of the general requirement that police retain a warrant, you have to look at this on a case-by-case basis. So, when a suspect is fleeing, you may have to act quickly. Police officers may have to do something right away, for instance, to avoid the destruction of evidence, or to make sure that that suspect does not flee again, through another door in the house, for instance.


But there's no need to decide, before anything occurs, that the police have to act quickly without a warrant in every single case. Therefore, if an officer has time to go get a warrant, which, in this case, the suspect was arriving home. He could have gone and gotten a warrant, and then gone into the house if he had probable cause to determine that the crime had been, was being, or was about to be committed. Then he should go through that process.


The Supreme Court ended up vacating the decision and sending it back to the state courts to look again at the case, in light of their opinion. Now, Chief Justice Roberts, joined by Justice Alito in this case, filed a separate opinion which concurred in the judgment, but had very different reasoning. In that concurrence — in the concurrence in the judgment, at least — Chief Justice Roberts agreed that Lange's case should go back to the state courts. But he disagreed with what the Fourth Amendment requires.


So, according to Roberts, the Court's prior cases had established, in fact, a general rule that hot pursuit does justify warrantless entry. So the case should go back so that Lange could have the opportunity to argue that the case is the kind of unusual case in which the general rule about hot pursuits does not apply. More broadly, Roberts went on to really criticize Kagan's majority opinion. He described it as reaching "an absurd and dangerous result," that would be difficult to apply and put police officers at risk.


Now, Justice Brett Kavanaugh authored a concurring opinion. He noted the reasoning of the majority there. And he suggested that it wasn't so different from Chief Justice Roberts' position. In fact, the quote that he had, I mention it because he mentions academic in his story. And he said, "the difference between the Chief Justice's approach and the Court's approach will be academic in most cases." By that, I'm assuming he meant brilliant, insightful, and thoughtful. Perhaps not. And he went on to say that it is because of cases of fleeing misdemeanors will almost always involve a recognized exigent circumstance, such as risk of escape, destruction of evidence, or harm of others, that it will justify warrantless entry into a home.


Now, Justice Clarence Thomas authored an opinion, concurring in part, and concurring in the judgment. He noted that this case-by-case rule, described by the majority, is subject to historical categorical exceptions. He was joined by Justice Kavanaugh in one portion of his opinion, where he said that the federal exclusionary rule does not apply to evidence that's discovered in the course of pursuing a fleeing suspect.


Now, I have two thoughts I want to offer before turning it over to the next case here. The first is an originalism point. So I wrote at some length about the original Fourth Amendment. Actually, I've written many times about the original Fourth Amendment. But, one of the salient points, particularly for this case, is common law doctrine at the time of the founding.


So, at the time of the founding and for centuries before that, the crown and the United Kingdom, or England, could only enter without a warrant in particular circumstances related to hot pursuit of a fleeing felon or the hue and cry, basically. Now, there was actually, in this case, a good amicus brief that did bring out the originalism arguments, which was an interesting brief, actually, to take a look at.


But the history of this is that, if you go back to Coke — a fleeing felon, mid-felony — you could break into a house if there's a felony that has just occurred. So the sword has just gone through an individual. And that person runs away with the sword. And you can follow them into the house that they run into. Hale had a more permissive view than Coke even. But it was still limited to felonies. It had to be a very serious crime. Under Hawkins, if you look at Hawkins' treatise, it had to be hot pursuit of a felony. Even Blackstone, right?


At the founding, Jefferson was afraid that Virginia law would be based entirely on Blackstone because it was so ubiquitous at the founding. Blackstone also mentioned the fleeing felon, or a fleeing felon for whom probable cause had been established, that a felony had been committed. That was the exception to the warrant rule and the general prohibition on general warrants.


Now, there were various tweaks on this in English common law, for instance, if there was a dangerous wounding whereby a felony was likely to ensue. So somebody had been wounded grievously and might die and it looked like it might be a felony that had occurred. Then you could detain the suspect. The hue and cry is another one.


I have at work on my office door a little sign that says, "In the absence of the hue and cry, come back with a warrant," because a hue and cry was when there had been a suspicion of a felony, or a dangerous wound existed. Then you could raise the alarm. You would literally sound the alarm and every able-bodied male of a certain age had to actually show up and look for the individual who was suspected of having committed this felony. That was also noted in Cook, and Hale, and Hawkins. They all wrote about the hue and cry as well.


Now, there was another exception, which was for affrays or breaches of the peace, which were also related to the risk of a felony ensuing, like dangerous woundings. And it basically triggered arrest powers. So, for Blackstone, it could be an actual breach of the peace, which suggested there was violence that was occurring or would be about to occur because of this action, or what was understood as a constructive breach of the peace, where you spurred others to engage in violence at the time. That was a misdemeanor, the breach of the peace. But the violence and the concern about what would be raised was a very serious level.


Here, we have a case where it's a misdemeanor. Somebody is no longer in their car. They're now in their home. So it really would have been quite a departure from our traditional, or, at least, original understanding of the exceptions to the warrant requirement, had it been granted in this case.


The second thought, and the one I want to leave with on this, is how should we think about this case? Well, one thing to point out is there is a common view amongst right and left on the Court that there is the sanctity of the home. Now, there are some exceptions to this, like officer safety, or preventing, as I mentioned, the destruction of evidence, or preventing a suspect's escape, or protecting against imminent injury, or giving emergency assistance to somebody who's been injured inside the dwelling.


But, as Kagan noted in this case, "Freedom in one's own dwelling is the archetype of the privacy protection secured by the Fourth Amendment. Conversely, physical entry of the home is the chief evil against which it is directed," that a man is secure in his castle from any unwanted invasion by officers of the crown or by the government. So any warrant exception preventing entry must be jealously and carefully drawn.


Thus, for a misdemeanor, if you think about it, the totality of circumstances of the flight itself into the home and what went into that has to be taken into account going forward, looking at the nature of the flight, the seriousness of the misdemeanor, the risk of imminent harm to others or a threat to the officer him- or herself, the risk of destruction of evidence, and potential escape from the home.


Adam Griffin:  Thank you, Professor Donahue. Really appreciate that presentation. Unfortunately, our fourth panelist, Mr. Vines, was not able to be here today. But Mr. Frommer has graciously agreed to step in and cover Caniglia. As previously mentioned, the Institute for Justice, where Mr. Frommer is a senior attorney, filed an amicus in that case. And he was the lead signature on that. So I'm going to turn it over to Mr. Frommer to cover Caniglia.


Robert Frommer:  All right. Thank you, Adam. And thank you for bearing with me. I haven't looked at this case in a little while. But it's a fascinating case, and it really gets to that sanctity of the home, homes being sort of the major touchstone of the Fourth Amendment, and the Court's continuing rejection of ways that government officials can get into a home, absent a warrant.


      So, let me go over a little bit about the background of the case. So this is all the way back in 2015. Edward Caniglia and his wife are joking. They're kibbitzing. He says he doesn't want to use a coffee mug his brother-in-law had used because he might catch a case of dishonesty. Next thing you know, there's a huge argument. Edward's getting tired from the bickering. So he storms into his bedroom, grabs an unloaded handgun, comes back, puts it on the kitchen table in front of his wife and says, "Why don't you just shoot me and put me out of my misery?" And, unsurprisingly, of course, that didn't smooth everything over. The two continued to fight.


      So, Edward took a drive to cool off. He comes back. They still fight. So, the wife, Kim Caniglia, she decides to spend the night at the hotel. The next morning, she tries calling home. She doesn't get an answer. So she's worried. And she calls the police in Cranston, Rhode Island, and asks them to come home with her and perform a well-check.


      When they get there, Edward's sitting, completely normal, on the deck. They talk with him. They don't see anything wrong with him. He seemed calm, for the most part. And they said that he didn't seem suicidal. In fact, the officers didn't ask him any questions about his risk of suicide or prior misuse of firearms or risk of violence. But, even despite all that, they still thought he could hurt himself, and they wanted to take him to a local hospital for an evaluation.


      Now, Edward refused, saying his mental health wasn't their business. But he agreed to go with them, on the condition that they wouldn't seize his guns while he was gone, which the police promised to do. Well, guess what happens? Immediately after Edward left, the police said to Kim that Edward had consented to the confiscation, and they took the two guns.


      So, once Edward gets discharged from the hospital, he brings a civil rights suit, saying that the officers' actions in seizing the guns violated the Fourth Amendment. The District Court and the First Circuit disagreed, saying that the officers' actions were justified under the community caretaker doctrine. By that point, the community caretaker doctrine, which originally comes out of a case called Cady v. Dombrowski, which is about vehicles -- a number of circuits had held that the exception also applied to homes. Since officers might have similar non-emergency duties there, they are divorced from crime control and investigation. So the First Circuit said their warrantless entry, their warrantless seizure of the guns, is perfectly fine.


Then it gets up to the Supreme Court, where both sides got really hammered with questions. There was lots of questions about the scope of the community caretaker doctrine, why this wasn't argued under something like an emergency aid exception below, and, also, what the limits to the community caretaker doctrine are. The solicitor for Rhode Island didn't do himself any favors when he said that officers could warrantlessly enter into someone's property in order to get a cat out of a tree.


And so the Court was -- it wasn't much of a surprise when the Court came back and said 9-0 that the community caretaker doctrine just does not extend this far. And, in so doing, overruled holdings from a number of circuits that had said the community caretaker doctrine does apply to the home.


      In the opinion, Justice Thomas principally looked at the facts of Cady v. Dombrowski, and said, you know, in that case, this was a car that was immobilized in a public right-of-way. They had to do something to get the vehicle out of there. That's the kind of just ordinary community caretaking that we generally rely on. But that's a far stretch from saying a car in a public right-of-way that's immobilized is the same as someone's home.


And so what we saw in that case is a complete rejection of the community caretaking doctrine in the home. We saw a number of concurrences basically arguing that, despite this ruling, there would be a number of instances where people could go into the home. One thing that came up quite often in the oral argument was whether you had old, elderly neighbor who would always come over for dinner, and one day she doesn't show up. Is that enough to go break into the home to see if she's okay?


      And there's still some debate about the edges of this: where the emergency aid exception applies, what kind of facts the officers need in front of them in order to invoke that. But, as with the decision in Caniglia, the community caretaking doctrine is completely and totally no more, in the home context.


Adam Griffin:  Thank you Mr. Frommer. We're now going to go to a short response round, where each person has three minutes to respond to what they've heard and to maybe raise questions or engage in the discussion with their co-panelists about the future of the Fourth Amendment and the cases they've discussed. So we'll go in the same order we went to start. So, Professor Bellin, would you like to kick off this round?


Prof. Jeffrey Bellin:  Sure. Sadly, I didn't hear anything outrageous, so there's not that much to get excited about. It seems like very sensible thoughts. I guess some of the most interesting things to me are trying to draw connections, or thinking about, like you were saying, where the Court is going. And it does seem like, just listening to it, that Caniglia, the case that we just heard Robert talk about, and the misdemeanor fleeing case that Laura talked about -- they strike me as very similar in the sense that the Court was saying there's no easy shortcuts to what counts as reasonable.


So you can't just say, if you're fleeing from suspicion of a misdemeanor offense and you go into a house, then it's reasonable to go in. The ruling in that case, the Lange case, is like, it depends whether you really needed to go in or not. You can't just say it was a misdemeanor and so we had to go in. And then the same thing in the case we just heard. So, like Robert says, the community caretaking exception is gone, but the Court can just say "emergency aid" and then they're okay again.


So, the shortcut of saying, well, it's not criminal law enforcement -- I guess that's how we frame these things, how the lower courts are supposedly -- I'm actually suspicious that they were really doing this. But, to the extent that courts were just saying, "Well, it wasn't criminal law enforcement. They were doing community caretaking. No rules apply. Do whatever you want, police." To the extent they were saying that, the Supreme Court says, "No. You've got to be more rigorous."


      But in all of these cases, including Caniglia, you could see a court just saying, "Okay, well, we'll call it emergency aid now." And the police had to get the gun out of the house because the person was acting difficult. Or you could say it was consent, because I think the wife actually said you could take the guns. There's many different ways the police could still have gotten the guns out of the house. What they can't do anymore is just use this kind of shortcut. You have to actually point to something that makes it an emergency.


      And all of that gets to what counts as reasonable, which, I'm convinced — despite Professor Donohue's great research, and Robert's powerful advocacy — you're just going to have so much trouble finding common law from England answers that are definitively established — many of these principles — just because policing at the time of the framing was just so different. You heard it with the hue and the cry.


These things are just so different from the kinds of fact patterns that courts are looking at today that it's hard to get definitive answers from the history. And even to the point of -- even if something was allowed in some English jurisdiction in 17- whatever, does that mean that it continued to be allowed after the Constitution was enacting? It seems like that's an open question.


      And that's why I say — this is like a sales pitch for my article, which I make no money off of — that, really, the place to go for answers, when you can, is just the text of the Fourth Amendment. And the text of the Fourth Amendment is sometimes very clear when it talks about searches, when it talks about seizures, persons, houses, effects. These are words that have clear meanings. And I think the Court is on the strongest ground when it can draw from these words to say, "The answer is X, because the words in the Fourth Amendment dictate that."


But, obviously, you can't get there when you're moving into the "what counts as reasonable or not." And that's where you need to come up with something else. Adam, that's my effort to stoke controversy.


Adam Griffin:  Thanks Professor Bellin. A quick moderator's prerogative -- do you have a view of what the word "reasonable" in the Fourth Amendment means?


Prof. Jeffrey Bellin:  Not one that's enough, that's great enough to broach here. I don't have that ready yet for mass appeal.


Adam Griffin:  Okay, all right. Thank you. And, Mr. Frommer, if you'd like to go next.


Robert Frommer:  Yeah. I think the discussion of all these cases demonstrates — and I noted this in my earlier conversation — that I think what we're seeing is a move away from the pragmatist approach that we saw in, let's say, the '80s, 90's, the general, "We're going to balance people's Fourth Amendment interests versus the government interests."


And I think what we're seeing from the Court in all these cases is going back to like, no, the law means something. The common law means something. There are rules that were devised at the time of the framing that governed at least some of these actions. And we should look to them and follow them. And we shouldn't try to undermine those that exist.


      I agree with Professor Bellin that there's, oftentimes, the specificity of law enforcement practices before and during the time of the framing are incomplete. Because, you're right, the nature of policing of law enforcement changed very dramatically in the 19th century. But I don't think that means that we throw our hands up and say, "Well, anything goes." I think what we say is — to the extent we can identify a specific practice that is analogous — that we should follow that. If we can find the specific practice in the common law that tracks to what we're doing now, we should follow that. But, when we can't, I don't think we should just retreat to well, anything goes, or a balancing test.


I think, at that point, it's just -- we up a level of abstraction. We go, "What do we know about the original meaning of this, or the original understanding of the Fourth Amendment? What was the general thing that the framers and the populous were trying to avoid?" And what they were trying to avoid, I think — over and over again, you can see this — is the risk of arbitrary government invasion.


And, so, I would say, even when we can't have a specific law enforcement practice that we can look to, we should still look at that general understanding of what the Fourth Amendment and all the state analogs -- because after all, the Fourth Amendment says" a person's papers, houses, and effects." Other state constitutions at the same time say "persons, papers, houses, and possessions." Others say "persons, papers, houses and property." But there's nothing that suggests that the people in those different states actually thought that they were enacting different levels of constitutional protection at that point. I think they all thought that what they were doing is trying to prevent arbitrary government invasions of their persons and property.


And so, when we run into a problem that the common law can't cleanly solve, I think the approach is to say, "Would allowing the government to invade here, to do this, to search — to seize, in this instance — would that reduce or increase the security that people were trying to accomplish by adopting the Fourth Amendment? And that should be the ultimate touchstone, which I think will end up putting a lot more things inside the Fourth Amendment box, which, unfortunately, I think right now a lot of things evade all Fourth Amendment scrutiny, primarily through the reasonable expectation of privacy and the other search doctrines that have grown completely unmoored from the ordinary meaning of the terms.


Adam Griffin:  Thank you, Mr. Frommer. Professor Donohue, if you would like to take your three minutes.


Prof. Laura Donohue:  Yeah. I couldn't agree more, just to put it bluntly. I think Rob is right on this. It doesn't matter if it's a police officer or an egg inspector coming into your home. And there are plenty of egg inspectors in British history, in terms of understanding search authorities and everything. It doesn't matter who it is trying to enter your home. The Fourth Amendment reflects the understanding at the time of the founding that the government cannot enter without a warrant. And it particularly prohibits a general warrant.


So, most recently, I've written about this in the Supreme Court Review, in an article I wrote post-Carpenter called "Functional Equivalence and Residual Rights Post-Carpenter," framing a test consistent with precedent and original meaning. And, in that article, I go into great depths on how the Fourth Amendment has become just completely unmoored from what it originally meant, against the reason when it says, "the right of the people to be secure in their persons, houses, papers, and effects against unreasonable search and seizure."


What was reasonable? Reason was the reason of the common law. So unreasonable was what went against the reason of the common law. And what went against the reason of the common law were general warrants. So general warrants would not be acceptable. You could not enter a home without a warrant, outside of the fleeing felon — as I mentioned earlier — the hue and cry exceptions. You couldn't enter a home. You had to have a warrant.


And, basically, what our Fourth Amendment says in the first part is a general warrant will be insufficient. Because they were proliferating at the time of the founding, not least through writs of assistance. And so they said, look, we're not going to have these anymore. We're not going to allow any sort of general warrant.


      And then the second part of the Fourth Amendment details exactly what has to be included, the specificity on a warrant application in order for a warrant to be valid. And, in 1967, with Katz, the Supreme Court came up with this relativistic determination, "what is more or less reasonable," which completely unmoored Fourth Amendment doctrine from the original meaning of it, which was really very much tied to government power and restrictions on that government power.


      So, really, where it started going wrong was post-Katz in many ways. And I think we need to have a return to first principles that this is a limitation on the government.


      I also wanted to respond, however, to one thing that Rob had mentioned about curtilage. And this is another kind of a bit of a hot button for me. Curtilage, actually, at the founding, included the land around the home. Not just three feet around the walls of the home. But it included fields. It included outbuildings. It included barns. And they did not have to be contiguous or under the same roof. So, if you go back to Jacob's Law Dictionary, it means a courtyard, a backside or a piece of ground lying near and belonging to a dwelling house. If you look at these -- and I wrote in the NYU Journal a little bit about this that you had mentioned earlier, Adam.


      The first time we see curtilage appear is actually Chief Justice William Taft in Olmstead. That's the first time it appears. And he cites back to the 1921 case of Amos v. The United States. Interestingly enough, so, in that case, in Amos, it was somebody who was making moonshine. Much of our Fourth Amendment doctrine has been formed either through moonshine or marijuana -- it's the [inaudible 00:46:47] of the Fourth Amendment have really given us much of our doctrine in that regard.


In this case, he had had moonshine. And somebody came to the house and asked his wife for some of the moonshine to use as evidence. And so he was trying to suppress the evidence before the jury. So, actually, the first time we see it appear in any federal decision — as far as I could find — was when Taft cites to it in Olmstead. And his language -- he actually says, at that time, that "unless there has been an official search and seizure of the person, or a search and seizure of his papers or tangible material effects, or an actual physical invasion of his house or curtilage, for the purpose of making a seizure." And that's the end of the quote.


And it's the apparent synonymity of curtilage with his house, that has dominated since then. But that's actually not what curtilage meant at the time of the founding. A curtilage meant the messuage. It meant the land that was contiguous with house. It meant the outbuildings, the barns, the dairy, milking buildings. All of that was actually included. So that's been kind of another interesting interpretation of the Fourth Amendment that really departs and narrows the protections afforded to individuals, certainly in the 20th century. This is part of that kind of erosion of the rights that would have otherwise been recognized.


Adam Griffin:  Thank you, Professor Donahue. That's really interesting. I actually had not heard that definition of curtilage. And you stole my question about Bovat. If the garage was a mile -- let's say there's a large property around the house, a big field around the house, and it's out in the middle of an open field. Then, could they just free-roam and search it? And you're saying no. That would still be within the curtilage.


Prof. Laura Donohue:  There's case law on that, actually, that it still would have been -- roads, same thing. Roads that were away from the house, but within the curtilage, considered within the curtilage -- there are many cases on this. So it's only --


Adam Griffin:  -- Very interesting.


Prof. Laura Donohue:  -- when we get to the kind of distortion of what curtilage means that suddenly our protections are limited to three feet around the house.


Prof. Jeffrey Bellin:  Can I just interject?


Adam Griffin:  Please do.


Prof. Jeffrey Bellin:  But curtilage is not really the word that you should be applying. It should be house. So really what's going on is you're saying curtilage equals house, therefore it's a search that matters because they were searching the curtilage, which is house. Or maybe you don't care about the text.


But for me, it's not enough to say that I can find some common-law sources that talk about the curtilage extending like whatever property you've got. To me, it matters that the words in the Fourth Amendment are "persons, houses, effects, papers." And if you can't hit one of those, then you have a problem.


Adam Griffin:  That's really interesting. I wonder if that's -- Professor Donohue or Mr. Frommer, if you have a response to that. It sounds like there's maybe some discrepancy about the ordinary meaning of "house" means a house. But was common law, or the original understanding of "house," the original understanding of "house" in the context of the Fourth Amendment? Did that include curtilage, which would have included fields and outbuildings and that sort of thing?


So is there something about textualism in the ordinary meaning of "house" that maybe conflicts with the original meaning of the Fourth Amendment and "house," which would have included curtilage. Any thoughts?


Prof. Laura Donohue:  Yeah. I don't see a conflict there, in the sense that the house and the buildings and outbuildings associated with it were considered part of the property rights. Mr. Wood just put in the Q&A a question about whether this fits into "effects." This is actually something I took a look at. But "effects" was tangible goods and things. And, actually, "effects" is a really interesting hook for concepts of bailment that Justice Gorsuch raises in Carpenter, this idea that digital information can be considered an effect or not, and the way in which bailment acted with regard to effects at the founding.


So I think, actually, there is a lot of room for "effects" to be reinforced, so to speak, in the doctrine. I think this is something that has been largely avoided in the doctrine, which is really surprising. And, instead, what we've done is we've redefined what "reasonable" means, as opposed to looked at what "effects" are and how to understand those effects.


      So I think the effects issue is not as much -- because effects tended to be items that could be moved, that could be passed -- although, horses. It could be big items. Or like big carriages and things like that. But it wasn't immobile and associated with the property rights of an owner of a dwelling and the curtilage of their home.


      Another question that came up, actually, in the Q&A is Mr. McGuire had raised that whether Otis, in one of these most famous orations that we have, whether Otis -- the type of searches that he was addressing are, actually, exactly the unreasonable searches that I've been referring to in terms of the meaning of the reason of the common law, or what was unreasonable under the common law, and that these were reflected in Entick v. Carrington, Leach v. Money, and Wilkes, which were, of course, the cases that responded to North Briton number 45, I think it is. And in North Briton 45 — as I recall, it's 45 — this is exactly the same thing. This is the legacy. This is the history of it. So I would agree with that analysis.


Prof. Jeffrey Bellin:  Can I just add one thing?


Adam Griffin:  Please do.


Prof. Jeffrey Bellin:  What's interesting about what Laura just said is part of the reason that we don't have a good handle on, like, what "effects" means, and things like that, is that when the courts switched over to a reasonable expectation of privacy, it kind of made it so that no other questions mattered. If it was invading your reasonable expectation of privacy, it was a search. And then we were no longer talking about, what exactly was it? Where was the search? Was it search of your person? Was it search of your house or effect?


And it's that move away from the text in Katz made it so that we kind of don't have answers beyond this one over-arching question that is just -- like subsumes all of Fourth Amendment doctrine, up until the question of reasonable assent.


The other thing that I did want to say on what counts as reasonable -- you can look at things like the Otis speech and things. But at the time of the founding, the searches that people talked about were just clearly searches or your -- they'd go into your house, and they take your papers, and then they leave, and then they put you on trial for sedition. And it was clear that what was unreasonable about that was you didn't have a warrant.


And so I think that the general way to deal with reasonable -- and let's just say search becomes reasonable if you have a warrant. And then sometimes it doesn't make any sense to get a warrant, like you're chasing someone with a knife or something. And then, that's not reasonable. And that part of it, actually, is less troubling to me than some of the stuff that everyone's been talking about, with the reasonable expectation of privacy, and the circularity and vagueness there.


Adam Griffin:  Thank you.


Prof. Laura Donohue:  Jeff, can I add something to that real quick?


Prof. Jeffrey Bellin:  Sure.


Prof. Laura Donohue:  -- which is that the other thing that we get from that is a court put in a political position, where they have to insert their relativistic judgment for some sort of legal standard. So, you end up, in the case of Ciraolo, with Chief Justice Rehnquist substituting his view of what would be reasonable.


In that case, you have a garden in the back of a house. There's a six-foot-high fence around the house. There's an eight-foot-high fence around the garden. And, in the 1980s, the police department in Santa Clara go down to San Jose and they rent a Cessna 150. And they fly over the house and they see the marijuana growing. And they say, "Oh, look, there's no reasonable expectation of privacy."


And he writes in his opinion, "because any passerby on the top of a truck or double-decker bus could have seen the same thing." And that's kind of an extraordinary statement. I grew up in California in the 80s. There were no double-decker buses. I looked across the country. It turns out there were only eight or ten registered double-decker buses. There's a double-decker enthusiasts' community, at the time. None of which were in my hometown when I was growing up.


And it was illegal, actually, under both city code and state code, to ride on the top of a truck. You were not allowed to sit on the top of a truck and do this. But then you had the Supreme Court stepping in and offering their general view as to what they think is more or less reasonable as a way of ascertaining whether that property owner — who had a six-foot-high fence around their house, eight feet around their garden — was entitled to some level of privacy.


And I think that that's what we get out of this reasonableness test, is an increasingly politicized court that actually substitutes their own view of what is more or less reasonable, instead of adhering to the legal standard.


Adam Griffin:  Thanks, Professor Donahue. Let me take a quick moment to kind of summarize where we're at. And then we're going to pivot to some of these questions and make sure we give full answers to them. So, in the response section, I heard, I think, Professor Bellin saying that he sees us moving away sort of from carte blanche exceptions to the warrant requirement. They have to give a reason. There has to be something that the officer is saying. There is an exigency. There's an emergency. There's a reason to come in, whether it's civil or criminal.


And Rob is saying that we're moving away from policy-balancing to maybe some more definitive rules and guardrails on Fourth Amendment protections. And it's been a really interesting discussion to hear about. Is curtilage protected? What's the scope of curtilage? What's the meaning of effects? How does just a general reasonableness run into problems?


It's interesting to reference that it was illegal to ride on the top of a car, but using the top of a car justified this plane search, which sort of brings to mind ideas of positive law or common law being limitations.


      I want to shift to the questions. I think we've sort of addressed some of them, but let's do it in a more orderly fashion. Because Jeff Wood had mentioned curtilage and effects, and had mentioned it's counterintuitive that you would have more protection in your personal property than in your land, which is incident to your castle. And, in the chat, we have a question about what "effects" means. Is a pickup truck an effect?


And then, Oliver and Hester mentioned for open fields. And so I'm wondering, Oliver and Hester, the open fields doctrine -- basically, the Court has said, "person, house, paper and effect." Field is not there. If there's an open field next to your house — you've got a house, you've got a big field next to it — officers kind of have free roam in that field. You have no constitutional protection under the Fourth Amendment in that field. Is that open fields doctrine right or wrong, and why?


Prof. Jeffrey Bellin:  Yeah. I'll just say a little and then people can jump in. What's interesting about the open fields case -- one of the open fields cases is like a paragraph. And then the other open fields case is a little longer. But the more recent one has like kind of two -- like a part one and part two. And part one fits perfectly with what I've been saying. They're saying like, "Well, maybe there's a search of the open field, but you're only protected in your persons, houses, papers, and effects. And an open field is none of those things. So there's no Fourth Amendment problem with officers searching in an open field.


      But the other part -- there's another part to the opinion that's, there's kind of an also -- you don't have a reasonable expectation of privacy in your open fields. And so they're just kind of both lingering out there. But that's the only place that the Court seems to care about papers, persons, and effects, is when they said in open fields cases, "This was an effect."


If you think about Katz, I think it's an interesting way to think about this. In Katz, the courts never say what was searched. That's where they intercept the phone call that he makes. Was it a search of his person, or the phone booth, the house, or his effects, the phone wires or something? And the reason they never do it is because, instead, they've switched to a different kind of test.


And so you see kind of the first open fields case is pre-Katz. And they talk about things like, "it's not paper, person, house, or effects." But, more modern doctrine, everything is resolved as reasonable expectation of privacy. And so we don't really have good answers to this stuff. In the Supreme Court case law, you do have good answers, and, like, Professor Donahue's research.


Adam Griffin:  Although, I believe that Hester does have a person, house, paper, or effect analysis in it. And Justice White has a concurrence where he says, "Oh, we don't need the reasonable expectations of privacy test. We can resolve it on person, house, paper, or effect. Field isn't within those, therefore, it's not protected." But it is interesting to see. Pre-Katz, of course, there's no reasonable expectation of privacy. It's just the four items, and, is open field within it. And then, post-Katz, reasonable expectation of privacy is certainly driving the ship for the majority.


      Mr. Frommer, did you want to talk about the open fields doctrine?


Robert Frommer:  Yes, obviously, since I am suing to overturn the open fields doctrine in a number of different jurisdictions, I obviously think that Hester and Oliver were wrongly decided. I think Hester, in particular, is an example of what I would call like a crab textualism. It looks at the four enumerated things — houses, paper, persons, effects — and says -- and Holmes in that, rather breezily, in the course of just like one sentence, says, "Oh, well these are completely different than the open fields under British common law," cite to a Blackstone definition of burglary and where it can occur, which doesn't really have anything to do with anything.


And you saw that also in that kind of crab textualism in Olmstead. The whole point of Olmstead, the whole reason Olmstead came out the way it did is because they said, "Well, this wasn't a person, paper, house, or effect." There are other ways to get at it. I think one of the dissents in Olmstead did a great job of saying, look, at the time, Olmstead had contracted with the phone company to make a call. So, under contractual principles, for the purposes of that call, those lines were his. And therefore, it's a Fourth Amendment invasion.


I think that would have been a perfectly good way to resolve Olmstead. And it's the textualism of Hester and Olmstead that led directly to Katz. So Katz was nothing more than an attempt to escape the literalism of Olmstead and Hester, and try to come up with a way that wasn't so tied to specific areas and specific words.


So, more generally, on the open fields doctrine, I think that Hester is a poorly reasoned decision, and I think that Oliver, its discussions -- the majority there has been undercut, especially if you look at a lot of the states' high courts. They have rejected the reasoning of Oliver. We saw Hester, the first open fields case, get rejected almost immediately by the Mississippi Supreme Court in 1926. And we saw the Oregon Supreme Court, the New York Supreme Court, the Montana Supreme Court -- they've all rejected Oliver. Tennessee has rejected the open fields doctrine for almost a century.


And so, these states, they don't necessarily turn on the particulars of their words, possessions versus effects, but I think what they look at is like what I was saying before: what is the underlying understanding of our constitutional protections against search and seizure? What is it supposed to protect us against? And it's that kind of arbitrary government invasion of our property, of our person.


We should feel secure in our property. And that's why, in all those instances, they said, in order to maintain that security, we need to provide a warrant. We need to require a warrant before the government enters onto private property.


Prof. Laura Donohue:  So, I would just jump in on this, in terms of the open fields doctrine. Rob, I don't think you're giving full play to the argument about this, which goes something like this: if I am walking down the street and I see something happen on your lawn, as a citizen, I can see that happen. Now, say -- so my brother is a lieutenant in the San Jose Police department. Say he's walking down the street, and he sees something happen on your lawn. Why would he have to close his eyes and cover his ears and deny that he saw that, when any citizen could have seen that or done that?


I think that's the strength of the argument, is this idea, like, why would we have a separate set of rules for the government, just because they're government, what anybody else could see?

Now, where that argument goes off the rails, I think, is in technological enhancements and assumption of resources. So, when that argument becomes, well, anyone can rent a Cessna 150 and fly over homes in California and take a look at their gardens in their backyard, hmm, you know, that's something different. That's not just somebody walking down the street.


Although, now, with drones, we have this question: so what if a drone flies overhead and sees it? Right? Can anybody do something like that? And all the technological arguments that all this does is merely enhance the senses and make it easier and make it more efficient, well, now we're no longer in a world where, gosh, anyone can do it. Because, as it turns out, I can't just rent a plane and fly it over your house.


Plus you have these resource restrictions, and all sorts of other things. Same thing for 24-7 monitoring, same thing. And you can add all of these other technologically enhanced or enabled capacities or abilities that the government might now have.


That's where I think open fields doctrine -- and especially when the open fields doctrine is established and then it turns out that even when you put up fences and write "no trespassing," and block access to seeing what happens on your lawn or in your backyard, then the government is still somehow free to go inside that area when you've been very clear that this is protected area, and not anybody else who happens to walk by the house can actually see it.


So I would actually draw more attention to ways in which the technologies and kind of enhancements have altered that, such that you're in this absurd world now that if somebody can rent a helicopter and fly, in Riley, over the backyard of a house, if you get above and look through the missing skylight of another marijuana growth facility, well, now, can really everybody can do that? So that's where the argument, I think, falls down.


Robert Frommer:  Yeah. And I'm not suggesting that if there's an officer walking down the street and they look, and they're just walking down the street and they just happen to see something in one of your yards that they have to avert their eyes. That's not it at all. In fact, the open fields doctrine isn't really about that. It's about the physical invasion of the open field. The physical invasion of property. And we have trespass laws. Ordinary folks can't just start walking all around my property seeing whatever they -- looking around, poking around seeing what they can find.


But that's exactly what the open fields doctrine allows. It allows officers to physically invade one's property for the purposes of finding information, often criminal violations of law. And in our Tennessee case, for instance, it wasn't just officers physically invading. It was them installing trail cameras that would allow for recording 24/7, and would send every image back to the headquarters. So I wholly agree that officers don't need to avert their eyes, but, at the same time, that's not really what the open fields doctrine is about.


A lot of these cases, it's about physical invasion. And, as to the drone issue, there's actually a fascinating case that came up out of the Michigan Court of Appeals, Maxon v., I think, City of Long Lake, or Township of Long Lake (Long Lake Township v. Todd Maxon), where they said that the flying of a drone onto private property in order to do code enforcement constituted a search, and that they couldn't do that without getting a warrant. That's currently up at the Michigan Supreme Court. So we'll see if we get some more guidance on that, as well.


      But I agree with you that technology ultimately exacerbates the constitutional issues. It raises the stakes. But I think the physical invasions are still present, regardless of the technology to be used.


Prof. Laura Donohue:  So, there --


Adam Griffin:  -- I think this is -- well, Professor Donahue, can I jump in real quick? I want to make sure we get to the other questions. I'll let you answer before we jump to those questions. I definitely think that the technology question is like, maybe, probably the biggest question in the Fourth Amendment today, is what do we do with new technologies. Is a drone search a trespass?


Please answer. And then, I think we have two or three comments or questions that I want to make sure we get to. And then we'll circle back to the general discussion. So please go ahead with your response, and then we'll turn to the Q&A.


Prof. Laura Donohue:  So, just two quick responses, Rob, to that. A number of states actually have said that it's a search, for drone law. And it's this weird disconnect between state law and kind of federal doctrine on this that states are finding that this is actually a search, and a warrant is required if it's going to be used by law enforcement officers.


So the second quick point on this is California constructive trespass laws, which came out of the paparazzi concerns around Hollywood and in Los Angeles. So some states are starting to turn to constructive trespass, where the gazing of the eye upon the property actually is an invasion of privacy. So, imagine Hollywood stars are out in their backyard bathing and somebody managed to look through a fence and take pictures of them. That's actually -- under California law, you have constructive trespass. So there are two ways in which that's being delt with at a state level.


Adam Griffin:  Thank you for that. It's really interesting. And it kind of brings to mind -- there's sort of the view of reasonableness that it's the common law frozen in time, 1791. And then there's also Stern and Will Baude and -- Professor Stern at William and Mary -- have the positive law model view of the original understanding that it's actually the positive law today, that if you violate the positive law today, then you have a violation of an unreasonable search. So if you have a search that would be constructive trespass in California, that would violate the positive law. It would be unreasonable. You would need a warrant.


      If you had a violation of a modern-day privacy tort, that would violate the positive law. It would be unreasonable. You would need a warrant. And so that has a lot of similarities to the common law in 1791 reasonableness view. And kind of brings in this constructive discharge as to a sort of new view that came out of paparazzi in California law.


      Let me turn to our questions here. I'm going to try to take them in order. I think we had one that may have already been answered. But Charles Nicholas said, "Regarding Lange, the California Court of Appeals, on remand from SCOTUS, said the exclusionary rule does not apply. So, on remand, in Lange, the exclusionary rule does not apply regardless of the fact that the Supreme Court granted certiorari and reversed the judgment below."


The Court of Appeals said the good faith exception applies. Last week, in People v. Lange, the petition for rehearing at the California Supreme Court, I think — maybe at the U.S. Supreme Court — but a petition for rehearing was denied in that case. And so the exclusionary rule didn't apply.


      Regarding curtilage, there was the Ninth Circuit case, where they held the dissent. Where the majority held the curtilage, it extended 135 feet. And I saw Mr. Frommer put forward that case. I did want to ask about the exclusionary rule. Is it originalist? Should we keep it? Should we get rid of it? Is it more of a policy thing? Or is it actually tied to the original, and the textual Fourth Amendment?


Prof. Laura Donohue:  So, one of the problems with that question is that, originally, you couldn't get a warrant to get evidence in a trial. You could only get the fruits and instrumentalities of crime. And this was a case in the United States too, under Boyd, that was kind of the height of that doctrine. But it fell away a few months before Katz in 1967. They did away with that doctrine that you could only obtain the fruits and the instrumentalities.


So you don't have the exclusionary rule questions. Because, unless you actually had the weapon or the stolen painting, then you weren't dealing kind of with fruits, so it's kind of a narrower question, I think, in many ways.


Adam Griffin:  Thank you for that. Let's see, we have another. I think this question came in first. This is shifting back to Torres, and seizure. Regarding Jeff's comments on Torres, in which he suggested that the seizure question is amenable to a strictly textualist approach, what do you do with the submission to show of authority cases, which I believer the majority and dissent talked about. "It seems to me," Michael says -- Manheimer, "that the Mendenhall test, whether a reasonable person would feel free to walk away, is analogous to the Katz test. It relies on background social norms. Whether we're talking about searches or seizures, we can't get away from social norms. Professor Bellin?


Prof. Jeffrey Bellin:  Thank you. So, first of all, hello Michael Manheimer, a good friend of mine. So thanks for your excellent question. And another great source for Fourth Amendment answers, by the way. He could easily be on this panel.


      So, with that warm response at the beginning, no. No, this is absolutely wrong. In a sense, the test says, this is the other way you can be seized, is if the police yell, "halt," and you actually halt. So, to me, that's clearly a seizure. We wouldn't say, "Oh, you're not seized, because you didn't fight the police and show them that you really wanted to get away." If the police say, "halt," and you halt, you've been seized. I think that fits the definition of seizure.


And you can see how it works, textually, because the flip side is — and this is the Hodari D. case that I was talking about before — if the police say, "halt" and you don't halt, you keep walking away, you're not seized. And the court says you're not seized in that circumstance.


And I think that also is a textual -- consistent with the text. That, even though you shouldn't have felt free to leave when the police yelled "halt" at you, you weren't seized until you actually either accepted that you were seized and stopped moving, or the police laid their hands on you. So I'm a huge fan of Michael Manheimer and his work. But in this case, I think this example strengthens the case for textualism, rather than weakens it.


Adam Griffin:  He said, "what if the police say, 'I need to talk to you.'?"


Prof. Jeffrey Bellin:  That doesn't make you seized. And I think -- so basically, there's always a grey area. This is true for the search too. So I exaggerated a little bit because it was such a threatening question for me. But there's always going to be some vagueness to, well, exactly where is the line between seized and not seized, searched and not searched? And what I would like to put into the doctrine for the Supreme Court Justices that are on the call is let's not add to the complexity by talking about things that aren't -- like, making distance between the term we're interpreting and the answer we're going to get to.


So, if we're trying to figure out what's a search, let's use the word "search" in our understanding of the word search. We're trying to figure out what's a seizure, let's use the word "seizure," and not add like additional tests and things that aren't necessary to that process. It's going to be hard enough, like Professor Manheimer suggests, to try to figure out exactly what counts as a seizure, and what counts as a search. Adding into that equation what's a reasonable expectation of privacy makes it impossible.


And I saw -- Adam's too nice to frame the question, but one of the comments is like, "this is a circular and disappointing discussion." It's because that's where the Supreme Court's case law has put us, in a place where, even as experts, we can't answer any questions. Because the question is something like, "has your reasonable expectation of privacy been invaded?" And how can you say authoritatively what the answer is? The real answer is wait and see. The Supreme Court will tell you when you get up to the highest court.


Adam Griffin:  And, on that point, I kind of wanted to address that -- is, to maybe try and make it more linear, to kind of organize the discussion. I think, like, the hit points really are textualism. Because, the right to be secure -- we haven't really talked about what that means. But, in your person, house, paper, effect, we've talked some about what are effects. Are they just personality? Are they land? Is the curtilage included in real property? Within the house, and so, person, house, paper, effect? What's the scope of that?


And then, "against unreasonable." And we've talked quite a bit about violating the common law in 1791, how abstract that gets, what you do when there isn't common law directly on point. Is it positive law, like constructive trespass in California?


      And then, searches and seizures -- and we've talked a lot about ordinary meaning of search, how they baked reasonableness into search doesn't make any sense. We should just be doing like, "did you look and see something? Did you search?"


And then, seizure, is it a mere touch, or is it an actual possession. So, hopefully, maybe that makes it more linear. I think sort of we jump around in different aspects of the text, whether we're unreasonable, we're talking about a search or a seizure, we're talking about what's constitutionally protected, or whether we're talking about the right to be secure.


      Before we move to the next question, did anybody -- well, we can jump to the next question. If anyone had thoughts on Professor Bellin's responses there to Professor Manheimer's questions, you can bake them into your next response.


      Ken McGuire said, "for Professor Donohue, and whoever else is interested, any thoughts on the current Supreme Court, originalism" and, I don't know if he meant Fourth or Fifth, but "the Fifth Amendment originalist prohibition on paper searches?" Maybe he's talking about a search of papers being self-incrimination under the Fifth Amendment.


So I think it's Boyd that has that tie between the original Fourth Amendment prohibition on papers, and the idea that if you could search someone's papers, it would be like looking into their mind and self-incriminating them. Any thoughts on originalism and the Fifth Amendment originalist prohibition on paper searches?


Prof. Laura Donohue:  Yeah. Sure. I'll jump in on that. Actually, at the time of the founding, these two — the Fourth Amendment and the Fifth Amendment right against self-incrimination — were very tightly linked. And you see a lot of documents, especially -- there were six states that prohibited self-incrimination in their -- as soon as they became new states in their new state constitutions. And there was a lot of discussion at the time about the link between these, that it made no sense to say that you had kind of what we now consider Fourth Amendment rights, if you don't have also this right against self-incrimination, and vice versa. And also the First Amendment came in there too. There was a very close linkage between those rights.


      Where it comes from, as an originalist matter, is really the Latin maxim nemo tenetur seipsum accusare, which, basically has meant no man is bound to accuse himself. And that grew out of, in England, the two different systems. There was an accusatorial system for law enforcement-type related issues. And then there was an inquisitorial one. So you have both the accusatorial and the inquisitorial systems. And the latter really came out of the ecclesiastical courts. And, basically, in that system, you could compel the alleged wrongdoer to affirm, to state, their culpability, by using what was called an oath ex-officio. So an official could make somebody actually say something in that particular system.


Now, that was very different from the accusatorial system, where they had to present their case and show that an individual had engaged in wrongdoing. Well, the other system, this inquisitorial system, kind of came to infamous heights during the Star Chamber, where it was being used to root out political and, at times, really just -- but mostly, political heresies, which really caused a lot of backlash to the use, this manner of getting information or evidence.


And so the way it's been interpreted in Supreme Court doctrine — which is really kind of interesting — is as reaffirming the accusatorial system and staying away from this more inquisitorial model, which was largely denigrated, in terms of what had happened under the Star Chamber in England itself.


      So, as a matter of U.S. constitutional law, if we're thinking about how we should look at the right against self-incrimination and Fourth Amendment issues — where I think this is really going to come to the fore, and already has come to the fore, but the Court has really dodged it to this point — is with digital information. Because there are all sorts of ways, in the CSLI case, for instance, in Carpenter, the Court doesn't really go into this issue in ways in which the Fifth Amendment is implicated.


Instead, it's almost wholly focused on making an exception to an exception of the Fourth Amendment in this post-Katzian kind of relativistic world that we live in. When, in fact, I think there are some very serious self-incrimination issues involved in being able to obtain third-party data, or even, information directly from individuals, particularly in the digital realm.


      So, I would hope that the Court starts bringing this in, because I think that's where we end up running into some very serious issues, at least, as a contemporary matter.


Adam Griffin:  So would that have some implications for the third-party doctrine, as it arose in Carpenter, and that sort of thing?


Prof. Laura Donohue:  Yeah, absolutely, that would have implications for that. And especially if, as Gorsuch has suggested in Carpenter, we adopt a bailment approach to information that you're actually -- that information would not be there but for your actions. And you are giving it to a third-party vendor for a limited purpose. You still own that information, as relates to you. This is a case that could be made and which Gorsuch started to kind of push into in Carpenter.


      So, if you think about that information as still being held by the individual, and you have a right to that information in which you are the owner of that data, then of course that impacts third-party. They can't go to a third party to get that information that you've only given to that third party for a limited purpose.


Robert Frommer:  I do want to comment, because I have found that I love the movement of the bailment theory into the information. And it's always struck me as something very bizarre within the Fourth Amendment, that when you're talking about physical objects that I possess, if I give those to someone for a particular purpose, like if I take my car to a repair shop, the cops can't just bust into the car and start looking around the car. They have to get a warrant.


But, somehow, when it becomes intangible — my property becomes intangible — that somehow then the rules of the protections I receive change fundamentally. And that just does not seem -- that doesn't seem to make a whole lot of sense. It doesn't seem to be very -- take a clear approach across all of our property, no matter what form it appears in. So I hope to see the Court continue on in that, and expand on that reasoning in subsequent cases.


Adam Griffin:  I want to ask a question, actually, drawing on Professor Bellin, and tying this back to the text of the Fourth Amendment. I think Professor Bellin kind of addresses third-party doctrine in his article, and he addresses it under the word "their" -- their persons, houses, papers, or effects.


      And so Professor Donohue is invoking original understanding and the connection between Fourth, Fifth, First -- the protections for papers and self-incrimination. I've been saying maybe this bailment theory makes sense, that you created the information, you retain a property interest in it, as pertains to you, which gives you a right to be secure in that property and those effects, that digital property. And so you can assert a kind of bailment theory to get your Fourth Amendment protections against the government, even if you're giving it to them for a limited purpose.


      But, reading Professor Bellin's article, would you say that that is still their property, that they retain an interest? Or is it someone else's? And does that matter? Anybody?


Prof. Jeffrey Bellin:  I'm so happy that you read the article, Adam. That's wonderful to me. And this is like -- so I was grimacing a little in the previous discussion, for the reason that you raise. To me, that's the entire distinction that matters, is, if I give a car to the car dealership to work on maintenance — which is probably a bad idea all by itself, but if I do that — it's still my car. And it's clearly my car. And the police search it. So they've searched my effects, which is my effects. My car counts as an effect. So they search my effects. That's fine.


If this, like the CSLI case, if your Verizon has records of where you've called from — because they have records of where everyone's called from in a big file on their server — it's just very hard for me to say that that's my property in some real way. All these businesses have information in their files of purchases that people made, and things like that. And I think there's good reasons to put a lot of regulations on that and whatever you want to do. But it's hard for me to say that the Fourth Amendment text says that Kroger's list of what I bought yesterday is my property, the same way that my car at the car dealership is my property.


Robert Frommer:  Ultimately, I think that turns on the terms of the contract between you and the provider. If the situation says, "You're going to provide us certain information so that we can provide service to you. And we will agree to hold that information close, and not share it with the entire world "--


Prof. Jeffrey Bellin:  But this is our disagreement, Robert. What word are you using? Are you using person, paper, house, or effect? Which of those things is this?


Robert Frommer:  What, the digital information? It would be on paper.


Prof. Jeffrey Bellin:  My purchases.


Robert Frommer:  Well no, I understand that you want to get to the paper, to the --


Prof. Jeffrey Bellin:  It's not my paper.


Robert Frommer:  That Kroger created the record independent.


Prof. Jeffrey Bellin:  Yeah.


Robert Frommer:   But what we're talking about in the cell phone situation is you, under the contract, you have to provide certain information to the carrier so that they can provide you service. And then the carrier says, "Well, we'll hold that information, keep it close." I don't understand why that is --


Prof. Jeffrey Bellin:  So, if I wrote up a list for the cell service people, and I gave it to them, then that would be my paper that they're using, or something. But, in most of these cases, that's not what's happening. In most of these cases, because I'm using their service, it triggers some kind of record. And that record -- at least arguably, is not my record. But sometimes it is.


And so, if it is, like if I save a word document, my latest article, on Google Docs, that is my document. So that's how I -- I'm not saying these are the best answers in the world, but that's how I would try to answer these questions so that you could actually have answers that you could tell people in advance and not have to wait for the Supreme Court to tell me that, based on some weird theory of bailment from the 16th century, my Verizon information is my paper.


Robert Frommer:  I don't think it's anything that weird. I think it's basically the contract, the first-year contract stuff that we all go through. I think that's how we divide and sort up our property rights amongst people in society. We can have this debate in a further [FedSoc] forum.


Adam Griffin:  I think the third-party doctrine and Carpenter is going to continue having lively debate on the Fourth Amendment and in future FedSoc Teleforums. I think Professor Donohue did have one point to make in this discussion, and that will probably round us out as the last point. Professor Donohue?


Prof. Laura Donohue:  Yeah. I'll go ahead and throw a grenade, since we're almost done, which is, I think third-party doctrine is dead after Carpenter. If you would look at the reasoning of that decision, as applied to cell site location information and the ridiculous gymnastics that the majority of the Court goes to to try to justify their determination that third-party doctrine is completely untouched by it.


I don't think that's accurate, if you follow the logic and you look at the impact and the ways in which digital technologies have affected how information has changed. So, I actually think we're heading into a world in which third-party doctrine is going to be jettisoned, if the Court is honest about what they're doing.


Adam Griffin:  Thank you for that. I think that's a good, bold statement to end on. And the next third-party case that the Supreme Court gets, it will be interesting to see if it goes that direction. I don't remember if Kavanaugh was on the Court in Carpenter, but I think Justice Barrett was not. And so it is a new Court, too, taking that reasoning, and the reasonings of the concurrence or the dissents in that case.


      Thank you all so much for being here. I think we have hit our 1:30 mark -- could definitely keep going. I found the discussion really interesting. I apologize to anyone whose questions or chats we didn't respond to. Hopefully we'll be able to do another Fourth Amendment Teleforum sometime soon. Thanks, everyone, for being here. And thank you so much to our speakers. Nick, did you have some final remarks? Thanks, everyone.


Nick Marr:  No, you covered it well. Thank you to Adam for taking the time to organize this, to pull it together. On behalf of the Federalist Society, too, I want to thank you, Adam, and our speakers for the benefit of your valuable time and expertise. Also, to our audience for calling in with your great questions.


Keep an eye on your emails and our website for announcements about upcoming events like this one and on this topic, hopefully, in the future. So thank you all very much. Until next time, we are adjourned.