Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism

44 Pages Posted: 8 Aug 2019 Last revised: 4 Sep 2019

See all articles by Nicholas Alden Kahn-Fogel

Nicholas Alden Kahn-Fogel

University of Arkansas at Little Rock - William H. Bowen School of Law

Date Written: August 5, 2019

Abstract

In Carpenter v. United States, the Supreme Court reaffirmed the continuing vitality of the privacy framework Katz v. United States established in 1967 for identifying Fourth Amendment searches. Justice Neil Gorsuch, in dissent, critiqued Katz as indeterminate and inconsistent with democratic values. In this article, I analyze Justice Gorsuch’s proposed alternative framework, which he described as the “traditional approach” to determining Fourth Amendment interests. Instead of grappling with the indefinite and textually and historically unfounded “reasonable expectations of privacy” framework of Katz, Gorsuch asserted, this traditional test would require judges to focus on whether a “house, paper, or effect was yours under law.” Although Gorsuch offered preliminary thoughts on this rubric, his opinion left open important questions, including the sources of law to which the Court should look in identifying property interests; the breadth of the definitions of “papers” and “effects” and the kinds of property closely enough associated with the person for potential implication of Fourth Amendment rights; and the ways in which government conduct impinging on such property interests might trigger Fourth Amendment protection. Several passages in Justice Gorsuch’s opinion suggest that he would take a broad, flexible approach to each of these issues. Overall, whatever ambiguities exist in Gorsuch’s dissent, it is certain that his property model would be more expansive than the pre-Katz trespass test that the Court rehabilitated in 2012. If that is the case, however, then the results that courts would be likely to reach under this framework might closely resemble outcomes under a principled privacy-based analysis. Additionally, because a broad property rubric would involve a significant degree of judicial discretion, it would replicate Katz’s indeterminacy. Thus, while Gorsuch’s approach might carry forward the benefits associated with Katz’s flexibility, it would also reproduce Katz’s associated flaws, including manipulability and democratic illegitimacy. Nonetheless, Justice Gorsuch might favor a flexible “traditional approach” over Katz because its explicit attention to the language of the Fourth Amendment is more conceptually elegant and, at least aesthetically, more consistent with Gorsuch’s originalist sympathies.

Keywords: Fourth Amendment, Criminal Procedure

Suggested Citation

Kahn-Fogel, Nicholas Alden, Property, Privacy, and Justice Gorsuch's Expansive Fourth Amendment Originalism (August 5, 2019). 43 Harvard Journal of Law & Public Policy __ (Forthcoming). Available at SSRN: https://ssrn.com/abstract=3432585 or http://dx.doi.org/10.2139/ssrn.3432585

Nicholas Alden Kahn-Fogel (Contact Author)

University of Arkansas at Little Rock - William H. Bowen School of Law ( email )

1201 McMath Street
Little Rock, AR 72202
United States

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