Supreme Court Decision in ‘Jones’ and Students’ Fourth Amendment Rights
January 27, 2012
This Monday, the Supreme Court of the United States issued its decision in United States v. Jones (PDF). There has been ample discussion of the decision around the blogosphere. Essentially, the majority opinion, penned by Justice Scalia, holds that a "search" for Fourth Amendment purposes occurs either when the test from Katz v. United States, 389 U.S. 347 (1967) is satisfied ("government conduct violates a subjective expectation of privacy and an objective reasonable expectation of privacy") or when the government trespasses in one of the categories listed in the Fourth Amendment ("persons, houses, papers, or effects") in an "attempt to find something or to obtain information."
This is an important ruling because determining whether a "search" has occurred is a threshold question in assessing whether the Fourth Amendment, which holds that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated," is applicable: where there is no search, there is no Fourth Amendment question, and no need for a warrant. As such, the Court's decision in Jones is an interesting one, and it is worth considering how Jones might affect the rights of students.
The majority opinion notes that in the latter half of the twentieth century, the traditional Fourth Amendment / trespass nexus gave way to an overriding concern with the Katz test. A large number of cases involving the Fourth Amendment rights of students in their dormitories occurred during this interregnum, with courts typically finding that a student's Fourth Amendment rights were only triggered when a student's subjective and objective "expectation of privacy" had been violated by the search in question.
Not so anymore. Under Justice Scalia's majority opinion, "trespass" by government actors (including, for example, police and public university campus security, administrators, and resident assistants) also count as "searches" when undertaken for "the purpose of obtaining information," and therefore also implicate the Fourth Amendment.
So what might this mean for student rights? For one, there are instances where a student might have little reasonable expectation of privacy, and yet still be protected against government search by the Fourth Amendment. For example, if a student at a public university leaves a stack of papers in the library, he or she likely has no "reasonable expectation of privacy" as to those papers under either prong of the Katz test. But if a campus security officer who has been monitoring the student rifles through the papers and notes that the tenth page contains records of drug sales, that officer may have trespassed—and thus, under Jones, has arguably conducted an unlawful search for Fourth Amendment purposes. (Of course, this depends on the majority opinion's understanding of what constitutes "trespass," and the debate on this point is already well underway.) Evidence secured by unlawful search is inadmissible in court, and there is a good argument that it should not be allowed in college disciplinary proceedings, either.
Previously, the Fourth Amendment has been successfully invoked to exclude evidence obtained via warrantless searches in cases involving student dormitories. For example, in Piazzola v. Watkins, 442 F.2d 284 (5th Cir. 1971), the United States Court of Appeals for the Fifth Circuit affirmed a lower court habeas action releasing students who had stored marijuana in their dormitories on Fourth Amendment grounds, noting that "[a] student who occupies a college dormitory room enjoys the protection of U.S. Const. amend. IV," finding that "[a] dormitory room is analogous to an apartment or a hotel room." Similarly, in State v. Houvener, 186 P.3d 370 (Wash. Ct. App. 2008), the Washington Court of Appeals dismissed a burglary charge against a student where evidence was seized from the common area of a dormitory because the student had a reasonable expectation of privacy in those areas. While these and other cases are couched in the "reasonable expectation" language of Katz, they may now also be justified on Jones trespassory grounds. Universities should be on notice that under Jones, lack of a "reasonable expectation of privacy" alone does not strip a student of his or her Fourth Amendment rights.
Moreover, courts have found that provisions in student housing contracts reserving a school's right to search dorm rooms are not always sufficient to render such searches lawful. For an interesting discussion of this point, see this 1994 advisory memorandum from the office of the Attorney General of Georgia.
Perhaps as interesting as the explicit holding is the dicta of Justice Sotomayor, whose concurring opinion represents the most privacy-friendly opinion in Jones. Justice Sotomayor agrees with the majority that a "search" is that which satisfies either the Katz test or the traditional trespassory test. However, Justice Sotomayor pens her concurrence to highlight her agreement with Justice Alito's separate concurrence, which argues that new technologies may render the trespassory test a dead letter. Justice Sotomayor writes:
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the "tradeoff" of privacy for convenience "worthwhile," or come to accept this "diminution of privacy" as "inevitable," post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) ("Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes"); see also Katz, 389 U. S., at 351-352 ("[W]hat [a person] seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected").
In the future, if Justice Sotomayor's desired "reconsideration" of secrecy as a prerequisite to privacy comes to fruition, the Supreme Court may begin to carve out space for privacy even when the subject of a search is otherwise publicly accessible or quasi-public. This would have interesting implications for postings online; many abuses at public universities might be effectively quashed.