During his nearly 30 years on the Supreme Court, the late Justice Antonin Scalia was perhaps best known for his commitment to originalism – the idea that the Constitution should be interpreted as it would have been understood by the Founders. Scalia’s dedication to originalism extended to the Fourth Amendment, which protects against unreasonable searches and seizures by the government. And it often meant that a justice whom many regarded as “conservative” reached pro-defendant results. For example, Scalia wrote the court’s 2012 decision in United States v. Jones, holding that a “search” took place when police officers attached a GPS device to the car of a suspected drug dealer and then used the device to track the car’s movements. Scalia and four other justices agreed that the installation and use of the device were no different, for constitutional purposes, than if the government had gone onto Jones’s property to collect information to use against him. This kind of “trespassing” would have been a “search” when the Fourth Amendment was first adopted in the 18th century, and so it is still a “search” today.

Judge Neil Gorsuch, the president’s nominee to succeed Scalia on the court, also describes himself as an originalist. And he too has adhered to originalist principles in reaching “pro-defendant” results in several cases, all implicating privacy issues. In one such case, United States v. Carloss, a federal agent and a local police officer went to Carloss’ house to speak with him. The house had several “no trespassing” signs scattered around the property, including one on the front door. Carloss allowed the officers to enter the house, where they saw drug paraphernalia and residue that appeared to be methamphetamines, but would not permit them to go any further. When the officers later returned with a warrant, they found “multiple methamphetamine labs,” a loaded gun and more drug paraphernalia.

When Carloss was prosecuted on drug and weapons charges, he moved to suppress the evidence found in the house. On appeal, two of the three judges affirmed the trial court’s ruling denying Carloss’ motion. Despite the “no trespassing” signs, the majority concluded, the general public and police officers had an implied right to enter the home’s “curtilage” – the area immediately around the house protected by the Fourth Amendment from unreasonable searches and seizures – to knock on the door and seek to speak with the home’s occupants.

Gorsuch filed a lengthy dissent from the ruling. He began by observing that, when the officers went to Carloss’ door to investigate a possible crime, they were indisputably conducting a “search.” The only question, in his view, was whether Carloss had, as the majority ruled, impliedly agreed to allow the officers to approach his front door and knock on it. Under the government’s rule, Gorsuch suggested, law enforcement officials would effectively have a “permanent easement” to enter a home’s curtilage for a “knock and talk” – “whatever the homeowner may say or do about it.”

But “this line of reasoning,” Gorsuch continued, “seems to me difficult to reconcile with the Constitution of the founders’ design.” The protections provided by the Fourth Amendment, he explained, parallel the protections available under the common law at the time of the founding. And at that time, the common law allowed government agents “to enter a home or its curtilage only with the owner’s permission or to execute legal process.” There was no “permanent easement,” he emphasized, for the state. “If anything,” he added, the Supreme Court’s decision in Florida v. Jardines – holding that the use of a drug-sniffing dog on a homeowner’s porch was a “search” for purposes of the Fourth Amendment – “reaffirmed the fact that the implied license on which the knock and talk depends is just that – a license, not a permanent easement, and one revocable at the homeowner’s pleasure.”

In United States v. Ackerman, the defendant was indicted on child pornography charges after an automatic filter on his Internet service provider identified images attached to his email as pornography and then notified (as required by law) the National Center for Missing and Exploited Children, which reviewed the images to confirm that they contained pornography and then in turn notified the police. The district court denied Ackerman’s motion to suppress the evidence against him, ruling both that NCMEC could not violate the Fourth Amendment because it is not a government actor and that its search had not gone beyond the ISP’s.

On appeal, the U.S. Court of Appeals for the 10th Circuit, in an opinion by Gorsuch, reversed. First, the court determined that NCMEC was either a government actor or, at the very least, acting as a government agent. On the latter point, Gorsuch noted that, “since time out of mind the law has prevented agents from exercising powers their principals do not possess and so cannot delegate. That is a rule of law the founders knew, understood, and undoubtedly relied upon when they drafted the Fourth Amendment.”

Turning to the question whether NCMEC’s actions constituted a “search” for purposes of the Fourth Amendment, the federal government pointed to the “private search” doctrine – the idea that there is no search when the government would not have learned anything significant beyond what the private actor had already told it. But even if that doctrine applied (and Gorsuch expressed doubt that it did), the Supreme Court’s 2012 decision in United States v. Jones also pointed to NCMEC’s actions being a search. In Jones, Gorsuch emphasized, the court “explained that government conduct can constitute a Fourth Amendment search either when it infringes on a reasonable expectation of privacy or when it involves a physical intrusion (a trespass) on a constitutionally protected space or thing” to obtain information.

Ackerman’s case, Gorsuch reasoned, involved “the warrantless opening and examination of (presumptively) private correspondence that could have contained much besides potential contraband for all anyone knew. And that seems pretty clearly to qualify as exactly the type of trespass to chattel that the framers sought to prevent when they adopted the Fourth Amendment.” The court of appeals therefore sent the case back to the lower court.

And in United States v. Krueger, a three-judge panel of the 10th Circuit upheld the district court’s order granting Krueger’s motion to suppress evidence – child pornography – found on a computer seized pursuant to a warrant issued by a magistrate judge in a different state. The majority relied on the government’s violation of the federal criminal procedure rule governing searches and seizures, without addressing whether the problems with the warrant violated the Fourth Amendment.

Gorsuch agreed with the majority’s conclusion, but he took on what he described as the government’s “phantom warrant argument”: the idea that the warrant was valid even if it did not comply with the law. Here Gorsuch once again relied on originalist principles. He noted that “looking to the common law at the time of the framing it becomes quickly obvious that a warrant issued for a search or seizure beyond the territorial jurisdiction of a magistrate’s powers under positive law was treated as no warrant at all.” It did not matter, Gorsuch stressed, whether – for example – “another judge in the appropriate jurisdiction would have issued the same warrant if asked.”

Gorsuch also rejected the idea that “enforcing territorial boundaries on the effectiveness of warrants is inefficient and arbitrary.” Citing (among other authorities) The Federalist, he reasoned that “our whole legislative system is predicated on the notion that good borders make for good government, that dividing government into separate pieces bounded in both their powers and geographic reach is of irreplaceable value when it comes to securing the liberty of the people.”

To be sure, although Gorsuch has sometimes relied on originalist principles to reach pro-defendant results, most of the opinions he has written rule – or, when he dissents, would rule – in favor of the government (often affirming a district court ruling) without specifically relying on originalism. For example, in United States v. Nicholson, a police officer believed (erroneously, it turned out) that a driver had violated a traffic ordinance. When the officer stopped the driver and smelled marijuana, he issued a traffic citation and seized the car, in which the police found (among other things) methamphetamines, a loaded gun and marijuana seeds. The driver argued, and the majority of a three-judge panel agreed, that the Fourth Amendment required the evidence to be suppressed because the police officer’s mistake was objectively unreasonable.

Gorsuch dissented. He acknowledged that, in “many” cases, “searches and seizures initiated because of an officer’s mistake about the law” “should be held unreasonable and therefore unconstitutional.” But here, he continued, the court did not have enough information to determine whether the officer’s mistake was reasonable “with any degree of confidence.” Moreover, he added, the “rigid rule” that the rest of the panel had adopted was contrary to the normal Fourth Amendment practice of being “sensitive to the totality of the circumstances.”

A little over a year later, in Heien v. North Carolina, the Supreme Court largely agreed with Gorsuch. By a vote of 8-1, in a decision by Chief Justice John Roberts, the court ruled that an objectively reasonable mistake of law “can nonetheless give rise to the reasonable suspicion necessary to uphold the seizure under the Fourth Amendment.”

In United States v. Rochin, a traffic stop prompted a police officer to pat down the driver. When the officer felt something in the driver’s pocket, but couldn’t identify it, he pulled the driver’s pockets out and found glass pipes containing drugs. Rochin, the driver, moved to suppress the drugs, arguing that the officer violated the Fourth Amendment when he removed the pipes without knowing what they were. The district court denied that motion, and the 10th Circuit affirmed.

Gorsuch seemed to regard the officer as having a fair amount of leeway in these kinds of protective pat-downs, explaining that the Fourth Amendment “is not a game of blind man’s bluff. It doesn’t require an officer to risk his safety or the safety of those nearby while he fishes around in a suspect’s pockets until he can correctly guess the identity of and risks associated with an unknown object.” Instead the Fourth Amendment only “requires reasonableness, not such potentially reckless punctiliousness.”

Although Gorsuch may be willing to give some deference to law enforcement officials, he proved less willing to defer to technology in United States v. Esquivel-Rios. In that case, a state trooper tried to verify a Colorado temporary tag, but the dispatcher told him that the tag wasn’t “returning.” Based on that information, the trooper pulled the car over; a search revealed over a pound of methamphetamine. During a trial for drug charges, the district court rejected Esquivel-Rios’ motion to suppress the drugs, finding that the trooper had “reasonable suspicion” that the tag was false.

On appeal, Gorsuch wrote for the three-judge panel that vacated the district court’s ruling and sent the case back to the district court for further proceedings. He concluded that the district court’s ruling was “right as far as it went,” but it had failed to account for another, potentially important piece of information: After telling the trooper that the car’s tag hadn’t “returned,” the dispatcher also warned that “Colorado temporary tags usually don’t return” – which at least suggested that the failure to return was the result of a database shortcoming or snafu, rather than a sign that the tag was false. And that, Gorsuch continued, raised questions about the reliability of the database and whether the officer could have in fact had reasonable suspicion.

Gorsuch acknowledged that “the law expects and takes account of human (and computational) frailties.” And he conceded that the standard for “legally sufficient grounds for a traffic stop” are relatively low. But because the state trooper relied on exclusively on the database report to stop Esquivel-Rios, and because so little information is available about how the database operates and how reliable it might be in these circumstances, he concluded, “the district court’s ruling cannot stand as issued.” The court thus ordered the district court to reconsider whether the trooper had the reasonable suspicion required by the Fourth Amendment. And if he did not, the court continued, the district court should also consider what the remedy for the violation of the Fourth Amendment might be – specifically, “whether exclusion is an appropriate remedy.”

Posted in Featured, A close look at Judge Neil Gorsuch’s jurisprudence, Nomination of Neil Gorsuch to the Supreme Court

Recommended Citation: Amy Howe, Gorsuch and the Fourth Amendment, SCOTUSblog (Mar. 17, 2017, 1:35 PM), http://www.scotusblog.com/2017/03/gorsuch-fourth-amendment/