Our firm recently filed an amicus curiae brief in the U.S. Supreme Court opposing the federal government’s claim that, after a person is arrested, police are entitled to search his cell phone without a warrant.

During oral argument on April 29, 2014, the Supreme Court will consider this issue in the context of not one, but two such cases.  The first case is United States v. Wurie, which was decided by the U.S. Court of Appeals for the First Circuit adverse to the government’s position.  The second case is Riley v. California, where the California courts ruled in favor of the government’s position. 

The government wants the Supreme Court to expand the scope of its “search incident to arrest” doctrine, arguing that a person arrested has no “reasonable expectation of privacy” in his cell phone and, therefore, that the government need not be required to obtain a warrant based on probable cause before conducting a search of the cell phone for evidence of the commission of some crime.

Almost five decades ago, by a five-to-four vote, the U.S. Supreme Court decided that the Fourth Amendment protected only a person’s “reasonable expectation of privacy.”  With that decision, the Court abandoned over 200 years of precedent, in which both English and American courts had ruled that the Fourth Amendment secured the fixed common-law property rights that citizens have in their “persons, houses, papers, and effects.”  Instead of adhering to these precedents anchored in the historic constitutional text, the Court substituted its own notions of individual privacy, expanding or contracting its scope in a long series of cases, increasingly bending constitutional protections to accommodate law enforcement. 

For some years, our firm has led a frontal assault on the Court’s “reasonable expectation of privacy” test to determine the scope of the Fourth Amendment.  We were even invited to write a law review article explaining why selecting the correct test is so important, and why the Court should return to the Fourth Amendment’s original property principles.

Why is this so important?

First and foremost, “privacy” is a term that does not appear in the U.S. Constitution.  In a legal context, it has no fixed meaning.  The notion of a “right of privacy” was first mentioned in legal writing in an 1890 article for the Harvard Law Review co-authored by Louis Brandeis. 

The notion of a “reasonable expectation of privacy” did not enter the Fourth Amendment lexicon until 1967, when Justice Brennan asserted that “the principal object of the Fourth Amendment is the protection of privacy, rather than property” (Warden v. Hayden, 387 U.S. 294, 304 [1967]).

After filing more than 85 briefs in the U.S. Supreme Court, we have learned that it makes no sense to spend time trying to argue about the meaning of a term like “privacy,” which has no historical constitutional context – since the Court will always decide that the term means whatever the justices want it to mean.  In fact, that is precisely why justices, like Justice Brennan, choose terms like “privacy” on which to base their tests – it frees them from the limitations of the constitutional text and enhances the scope of their arbitrary judicial power.  It is no coincidence that modern-day advocates of federal power embrace the opinions of Justice Brennan so that our elites can direct the nation to their utopian vision.

Moreover, under the privacy test, the “zones” protected by the Fourth Amendment narrow as the government’s technological capabilities and demonstrated intrusions in our personal life increase.  In a world where the government surveils everything, how could anyone have a “reasonable” expectation that the government is not surveiling any particular area of our lives?

The Founders grounded the Fourth Amendment not in privacy, but in principles of property law, as Justice Scalia explained in United States v. Jones (132 S.Ct. 945 [2012]):

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures’; the phrase ‘in their persons, houses, papers, and effects’ would have been superfluous.  (Id. at 949.)

As we explained in our brief, the rule of law has been abandoned by many Supreme Court justices on many occasions in the past.  Indeed, some justices have not even tried to hide their belief that they are not bound by the Constitution.  For example, in his autobiography, Justice William O. Douglas recounted a statement that Chief Justice Charles Evans Hughes made to him about how the Court operates: “Justice Douglas, you must remember one thing.  At the constitutional level where we work, ninety percent of any decision is emotional.  The rational part of us supplies the reasons for supporting our predilections”  (William O. Douglas, The Court Years, p. 8 [Random House 1980]).

Despite such judicial emotion and predilections, the tide recently has been turning.  The U.S. Supreme Court’s 2012 decision in United States v. Jones backed away from the Court’s amorphous privacy doctrine, signaling a return to the Fourth Amendment’s original property law base.  Consistent with our amicus curiae brief filed in Jones, the Court ruled unlawful a surreptitious trespass upon a person’s vehicle to place a GPS tracking device, whatever an owner’s expectation of privacy, or lack thereof.  Then, just one year later, in Jardines v. Florida (133 S.Ct. 1409 [2013]), the Court resolved that the Fourth Amendment had been violated by the police coming on a person’s property with a drug-sniffing dog. 

Twice, then, the Court has recently chosen to address the Fourth Amendment issue on property grounds, subordinating privacy to the property right of the people to be free from trespassing law enforcement agents.

Despite the unmistakable property basis of these two recent Supreme Court cases, lawyers and courts have continued to argue and address Fourth Amendment issues according to the now-downgraded privacy rationale.  This is what happened in Wurie and Riley, where neither the U.S. Court of Appeals for the First Circuit – nor the California court, nor the federal government, nor the State of California, nor even the individual defendants – argued based on the Fourth Amendment property principles at stake in this litigation.  All litigants argued about a “reasonable expectation of privacy.”  Asking the wrong question, they may very well get the wrong answer. 

Under a textual property analysis, the government must demonstrate that it has a superior property interest in a “person, house, paper, or effect” in order to justify a search or seizure.  Historically, upon arrest, a person could be separated from certain items of personal property, such as weapons, that might help him escape, but that was based on the government’s superior property interest over the person being arrested, not over any other items, especially the arrestee’s papers and effects.

Even when items of personal property are seized during an arrest, they are still the arrestee’s property, and the government is required to “keep and hold” the items, serving as a bailee, until the person is released.  The government is not allowed to rummage around the contents of a cell phone in search of evidence of a crime, such as occurred in Wurie.

Our amicus curiae brief gave a play-by-play description of the Court’s earlier abandonment of the Constitution’s text, and urged the Court again to return to property principles in analyzing the issue before it – searches incident to arrest.  Our brief even suggested that it may be necessary to order that the case be rebriefed and re-argued to put property principles front and center. 

If Wurie and Riley are decided in accordance with the property principles embodied in the Fourth Amendment, the government most certainly will lose.  However, if the case is decided in accordance with whatever five justices may think a “reasonable expectation of privacy” should include, it is anyone’s guess who will prevail. 

Robert J. Olson, Herbert W. Titus, and William J. Olson are attorneys with William J. Olson, P.C. of Vienna, Virginia.  E-mail wjo@mindspring.com, visit www.lawandfreedom.com, or follow www.Twitter.com/OlsonLaw.