Scalia’s Criminal Law Legacy: Fourth Amendment Edition

I just hate Fourth Amendment cases. I think those things–it’s almost a jury question, you know–whether this variation is an unreasonable search and seizure; variation 3,542. Yes, I’ll write the opinion, but I don’t consider it a plum.

So said Justice Scalia, of his distaste for search and seizure cases. It’s a striking statement when you consider the extent of Scalia’s influence on Fourth Amendment doctrine. “When it comes to search and seizure, it is now Scalia’s Court,” Professor Thomas Clancy (University of Mississippi) declared in a 2010 paper on the Fourth Amendment in the Roberts era. Search and seizure cases have also inspired some of Scalia’s sharpest prose. New Republic contributor Jeffrey Rosen adjudged Scalia’s dissent in the Fourth Amendment case Maryland v. King the Justice’s “smartest, wittiest ruling of all time” and “one of the best Fourth Amendment dissents ever.”

Katz v. Text and History

A good starting point for a study of Scalia’s search and seizure jurisprudence is Minnesota v. Carter, 525 U.S. 83 (1998). Three decades earlier Katz v. United States, 389 U.S. 347 (1967), birthed modern Fourth Amendment doctrine. Under Justice Harlan’s two-part test in Katz, the Fourth Amendment’s protections against unreasonable searches and seizures apply when the government invades a person’s “actual (subjective) expectation of privacy” and such “expectation [is] one that society is prepared to recognize as ‘reasonable.’ ” Scalia joined the Court’s opinion in Carter, applying Katz to hold that the defendants, who had been visiting another person’s apartment for a short time to package cocaine, didn’t have a legitimate expectation of privacy in the apartment. He wrote separately to explain how the Court had strayed from the Fourth Amendment’s text and historical context in the generation since Katz. The Carter Court, like the dissenting Justices, relied on Katz—i.e., by deciding whether defendants had a legitimate expectation of privacy in the apartment. Scalia believed that a straightforward application of the amendment’s language led to the same result:

The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures … .” [T]he phrase “their … houses” in this provision is, in isolation, ambiguous. It could mean “their respective houses,” so that the protection extends to each person only in his own house. But it could also mean “their respective and each other’s houses,” so that each person would be protected even when visiting the house of someone else. [H]owever, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to “houses” without giving it the same interpretation with respect to the nouns that are parallel to “houses”—“persons, … papers, and effects”—which would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.

A review of “founding-era materials” confirmed for Scalia that the Framers understood the Fourth Amendment this way. In his view, an analysis grounded in text and history was preferable to the “fuzzy” and “self-indulgent” Katz test, which lacks a “plausible foundation in the text of the Fourth Amendment.” That “notoriously unhelpful” standard provides judges with no external guidance; and when judges lack external guidance they turn within for the answers: “[U]nsurprisingly, those ‘actual (subjective) expectation[s] of privacy’ ‘that society is prepared to recognize as reasonable,’ bear an uncanny resemblance to those expectations of privacy that this Court considers reasonable.” (Justice Scalia had a similar problem with the Eighth Amendment’s “evolving standards of decency” test—“it is all too easy to believe that evolution has culminated in one’s own views.”)

Katz Plus

Arguably the most significant change to Fourth Amendment doctrine since Katz came in United States v. Jones, 565 U.S. 400 (2012). All nine Justices agreed in Jones that a “search” occurred when the government attached a GPS device to the defendant’s vehicle and used the device to monitor its movements. For a five-justice majority, Justice Scalia relied on the doctrine of common-law trespass, not on the Katz test. Because the government physically intruded upon private property, a search occurred, regardless of whether the owner of the vehicle had a reasonable expectation of privacy in its undercarriage. Scalia explained:

Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” [F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding.

In effect, Jones reframed the Katz test as a supplement to, not a substitute for, the common-law trespassory test. As Fourth Amendment scholar Orin Kerr (George Washington University) explained, Justice Scalia’s opinion in Jones caused a stir: “A lot of people had to rewrite treatises and casebooks and commercial outlines because everybody had understood the Katz test to be the only test in town. Not so after Jones.”

Broad on the Right

To limit this post to a digestible length, I’ve been forced to cut a number of opinions that must be studied to comprehend the scope of Scalia’s thinking and influence on Fourth Amendment doctrine. To the chopping block: (1) Scalia’s lone call in Arizona v. Gant, 556 U.S. 332 (2009) to rid the law of New York v. Belton, 453 U.S. 454 (1981), and Thornton v. United States, 541 U.S. 615 (2004), which give police broad search authority when they arrest a suspect during a traffic stop; (2) His skepticism of stop-and-frisk in Minnesota v. Dickerson, 508 U.S. 366 (1993); (3) His dissent in Prado Navarette v. California, 134 S. Ct. 1683 (2014), where he called the Court’s ruling—that an anonymous report of a single instance of careless driving rose to reasonable suspicion for a stop—a “freedom-destroying cocktail”; and (4) his privacy-favoring majority opinions in Kyllo v. United States, 533 U.S. 27 (2001) (re: thermal imaging) and Florida v. Jardines, 133 S. Ct. 1409 (2013) (re: dog sniffs).

From this plethora I’ll highlight Scalia’s tour de force dissent in Maryland v. King, 133 S. Ct. 1958 (2013). The Court held that using an oral swab to obtain a DNA sample from an arrestee did not violate the Fourth Amendment, even where there were no grounds to suspect the sample would link the arrestee to a crime. The intrusion was justified, the Court said, because DNA allowed the justice system to establish the defendant’s identity. In response, Scalia issued a heated, “let the Court be anathema” dissent:

The Fourth Amendment forbids searching a person for evidence of a crime when there is no basis for believing the person is guilty of the crime or is in possession of incriminating evidence. That prohibition is categorical and without exception; it lies at the very heart of the Fourth Amendment. Whenever this Court has allowed a suspicionless search, it has insisted upon a justifying motive apart from the investigation of crime.

It is obvious that no such noninvestigative motive exists in this case. The Court’s assertion that DNA is being taken, not to solve crimes, but to identify those in the State’s custody, taxes the credulity of the credulous.

As Jeffrey Rosen wrote at New Republic, “With rigor and wit, Scalia meticulously demolishes [the Court’s] made-up claim.” Scalia’s wit was also on display at oral argument, after counsel for Maryland began her address by stating, “Since 2009, when Maryland began to collect DNA samples from arrestees charged with violent crimes and burglary, there have been 225 matches, 75 prosecutions and 42 convictions, including that of Respondent King.” Scalia shot back: “Well, that’s really good. I’ll bet you if you conducted a lot of unreasonable searches and seizures, you’d get more convictions, too.” (Which triggered the sort of laughter that made Scalia the Court’s funniest justice.)

Scalia recognized the benefits of DNA science, but didn’t believe those benefits justified the Court’s position: “Solving unsolved crimes is a noble objective, but it occupies a lower place in the American pantheon of noble objectives than the protection of our people from suspicionless law-enforcement searches. The Fourth Amendment must prevail.”

He concluded:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an airplane (surely the Transportation Security Administration needs to know the “identity” of the flying public), applies for a driver’s license, or attends a public school. Perhaps the construction of such a genetic panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection.

I therefore dissent, and hope that today’s incursion upon the Fourth Amendment, like an earlier one, will some day be repudiated.

To which he appended this footnote:

Compare, New York v. Belton, 453 U. S. 454 (1981) (suspicionless search of a car permitted upon arrest of the driver), with Arizona v. Gant, 556 U. S. 332 (2009) (on second thought, no).

Narrow on the Remedy

While Scalia frequently interpreted the Fourth Amendment in ways that protected privacy and limited the government’s investigatory powers, he had a narrow conception of the exclusionary rule, which generally operates to exclude the government’s illegally-seized evidence of the defendant’s guilt from a trial. As Professor Kerr wrote:

Scalia was a strong opponent of the Fourth Amendment exclusionary rule. When the Court heard a case about its scope, Scalia’s vote was easy to predict. Scalia took the government’s side every time. His votes made him part of a conservative majority that consistently chipped away at the exclusionary rule over Scalia’s thirty years on the Court.

Scalia’s opinion in Hudson v. Michigan, 547 U.S. 586 (2006), emphasized the limits of the exclusionary rule. Because of the rule’s “substantial social costs”—to quote Justice Cardozo on the subject, “The criminal is to go free because the constable has blundered”—Scalia reasoned that the rule is a “last resort, not our first impulse” and should not be applied unless its benefit of deterring police misconduct outweigh its substantial social costs.

About the Constitution, Not Political Ideology

Of final note is that Justice Scalia’s Fourth Amendment jurisprudence, like his views on the Sixth Amendment, proves he was no ideologue. (The same can said of his colleagues, too; judges are less political and ideological than some would have us think.) In Prado Navarette and King, for instance, each of his dissents were joined by the same three justices, all of whom are considerably more liberal than Scalia (Ginsburg, Sotomayor, and Kagan). In Gant, Scalia joined Stevens’ opinion for the Court, along with Justices Souter, Thomas, and Ginsburg—to make a diverse group of three liberals and two conservatives. Similarly diverse was Scalia’s Kyllo majority, with Souter, Thomas, Ginsburg, and Breyer—a slightly different set of three liberals and two conservatives.


Scalia won and lost many of his Fourth Amendment battles by a one-vote margin. Whether his impact on the Fourth Amendment perseveres—or even grows posthumously—may depend on Judge Neil Gorsuch. As Professor Lawrence Rosenthal (Chapman University) wrote about the future of search and seizure law in the post-Scalia era, “Fourth Amendment jurisprudence is at a crossroads. If Justice Scalia’s replacement adheres to originalism, a narrow majority may continue along that path . . . . A replacement sympathetic to Justice Brandeis’s pragmatism, however, would follow a far different course.”

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