Thought on the Oral Argument in Byrd v. United States

After having listened to the oral arguments in Byrd v. United States, I have only a little to add to my prior blog posts (here and here).

First, Justice Gorsuch seems to be filling Justice Scalia’s shoes in advocating for a property-based notion of what constitutes a search.  (This was also pretty clear from his comments at oral argument in Carpenter v. United States, the cell site location information case).  Recall that in Byrd, the question is whether Byrd has standing to challenge the search of the car his girlfriend rented but of which he was not an authorized driver.  Because the police conduct there was clearly a search, the “what is a search” question might seem tangential.  But it is actually at the heart of the case because whether Byrd has standing is just another way of asking whether the police conducted a search as to him.  Justice Gorsuch seemed to be tossing a softball to Byrd’s counsel in asking whether the Court should look to reasonable expectations of privacy (REOP), on the one hand, or to property rights, on the other:

Do we look at what the reasonable expectations of privacy are by social science data, get my law clerks to go do that, or do we just announce normatively what we think it ought to be?  Should it depend on regional and cultural norms across the country?  Gosh, it's very complicated. * * * Professors Baude and Stern, among many others, suggest maybe we ought to look back at that property test again. What do you think?

Counsel for Byrd, in essence, agreed with Justice Gorsuch that the Court should look to property interests, which provide, as counsel put it, “a very clear and simple rule.”

The problem is that this clean dichotomy between a “clear and simple” property-based rule and an insolubly complex REOP test is an illusion.  As I argue in my recent piece, “A Unified Approach to Fourth Amendment Search Doctrine,” a trespass-centered test, in close cases, is no simpler than the REOP standard.  Take, for instance, Florida v. Jardines, where police took a drug dog up to the front door of Jardines’s house and had it sniff around the porch for a minute or two, after which it alerted to the presence of drugs in the house.  In holding this to be a search, the Court, speaking through Justice Scalia, reasoned that, although there is an implicit license to come up to the front door of a house and knock, there is no implicit license to come up to the front door of a house, refrain from knocking, and instead snoop around the porch.

I’m not so sure that’s correct.  But regardless of whether it is, it is at least an arguable point, and it depends upon what people expect others to do, based upon custom and social norms.  Thus, the supposedly clear property-based right to not have others trespass upon one’s land hinges in Jardines on a very close question of whether there was an implicit license, which devolves into a question of custom and norms, which is exactly the question we have to confront under the REOP standard! 

This close kinship between a trespass-based approach and a REOP approach is no accident.  After all, our positive law comes, ultimately, from social norms and customs, which sometimes blossom into enforceable legal rights and interests.  Indeed, the common law was, according to Coke and Blackstone, the law of long usage and custom.  As I argue in my piece, a trespass-based Fourth Amendment search test and a REOP-based Fourth Amendment search test are really one and the same.  The REOP approach simply looks to social norms before they have gelled into positive law.  But law is still law if it is recognized as such, even if there is no statute or case on point.

Which leads to a second observation about the Byrd oral argument.  Following Justice Gorsuch’s question, counsel for Byrd argued that his simple possession of the car gave him some legal rights in it:  “[P]ossession is nine-tenths of the law, and . . . that has roots in the common law going back to the 1600s and 1700s.”  Just after this comment, Justice Alito expressed his concern that the common law really could not provide answers because there simply was no case law addressing this precise question:

[T]he problem with going down this property route is that we go off in search of a type of case that almost never arose, if it ever did . . . arise at common law, where an unauthorized sub-bailee brings an action for trespass to chattel against a law enforcement officer. * * * When would that ever have happened in 18th-century America?  Never.

There are two flaws in Justice Alito’s reasoning here, the first of which counsel for Byrd attempted to correct and the second of which he did not.  First, the question is not what right “an unauthorized sub-bailee” would have against “a law enforcement officer.”  The question is what right “an unauthorized sub-bailee” would have against anyone committing a trespass to chattels.  The point of the Fourth Amendment search baseline is to separate those acts that we expect private persons to be able to perform and those we don’t expect private persons to be able to perform.  When the police commit an act that falls into the latter category, the police need special dispensation to do so in the form of a warrant or a warrant-substitute.  That is the touchstone of the search inquiry.  When counsel for Byrd raised this point, Justice Alito responded that this case involved no “private-party stranger” but “a party who has lawful rights that no private party had, which was to stop this vehicle.”  But that is a non-sequitur.  The challenge here is not to the stop but to the search.  Looking at the sequence of events step-by-step, we can essentially disregard the stop, because Byrd does not contest that it was lawful.  Instead, the focus is on the entry into the stationary car which, of course, any private person might have undertaken.

The second flaw in Justice Alito’s argument repeats a flaw from his dissent in Jardines.  He assumes that because there is no case law, there is no law.  But the types of conduct involved in the Court’s cases – e.g., a trespass to a chattel possessed by “an unauthorized sub-bailee” (Byrd); a trespass to land by approaching a front door and looking about the porch for evidence instead of knocking (Jardines); a trespass to chattel by placing a small item surreptitiously on its underside (Jones); a trespass to chattel by physically manipulating an opaque soft-sided bag (Bond) – are very unlikely to result in litigation, for fairly obvious reasons.  But that does not mean that there is no law.  If, for example, I see a fellow bus passenger manhandling my soft-sided luggage to determine its contents, and I tell him to stop, but he persists, I would like to think I am privileged to use whatever ordinary physical force is necessary in order to prevent my knapsack from being fondled, without being guilty of, or liable for, a battery.  I may be right about that and I may be wrong.  Either way, that such a case may have arisen only rarely if ever does not mean that I do not have enforceable rights and interests to protect my chattel should the need arise.  It means only that I am unlikely to sue this person, or to be charged with a crime or sued in tort if I engage in self-help.  It is even more unlikely that such a case would result in a reported opinion.  It is only because of our fetishistic obsession with reported appellate decisions that we equate case reports with the law.