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Monday, February 29, 2016

Inviolate spaces

Every year, I begin my Criminal Procedure class by teaching two seminal cases, Mapp and Katz.  Together, the two stand for the maxims that a government search and seizure ought to be supported by a warrant and probable cause, and that absent those procedural prerequisites, courts should exclude from trial the fruits of such searches and seizures.  We then spend the remaining 6-8 weeks studying the various doctrines that undercut the two rules (for good or for bad, depending on your normative outlook). 

This year, I decided to begin the semester with  Boyd v. United States, an 1886 case that precedes our modern-day Fourth Amendment jurisprudence. In Boyd, the Court struck down a court-ordered subpoena for an invoice in a forfeiture case involving plate glass. (Fun stuff). Among other things, the Court treated the subpoena as a Fourth Amendment "search" and held that the government could not search a man's "private papers."  Although the government could seize contraband and stolen property, evidence of criminality (later dubbed "mere evidence") contained in one's "private papers" was off limits, even to a court order.

Boyd eventually was overruled, albeit not at once.   The "mere evidence" rule stuck around, even as the Court expanded the government's reach to "instrumentalities" of crimes and not just stolen goods or contraband.  In Warden v. Hayden, the Court openly broke with Boyd, drawing a strong dissent from Justice Douglas. Today, Boyd is little more than a historical artifact for casebooks. 

Why care about Boyd?  It provides a nice counterpoint to the growing criticisms of the third-party doctrine.  Observers bemoan the government's relatively easy access to a vast array of personal information (bank, medical, credit card and telephone records, for example).  Yet I wonder how happy we would be had Justice Douglas's notion of the Fourth Amendment privacy (largely a recital of Boyd and older authorities) prevailed.  Is it plausible (much less desirable) to erect a zone of privacy that the government can never cross, even with the support of a magistrate's warrant?  

I found myself contemplating the foregoing question in response to the controversial Apple order pertaining to the San Bernadino shooter's cell phone.  Orin Kerr has succinctly explained the dispute in a series of posts, and as he points out, the case is not about the Fourth Amendment. Moreover, there exists a strong distinction between the "mere evidence rule" and a private company's locking technology for a set of phones.  Still, some of the commentary on the Apple dispute cannot help but remind me of the debates underlying Boyd and Douglas' dissent in Hayden. 

Posted by Miriam Baer on February 29, 2016 at 12:14 AM | Permalink

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