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Right to Privacy: The Fourth Amendment

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Published: Nov 7, 2018

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Works Cited:

Gudykunst, W. B., & Nishida, T. (2019). Bridging differences: Effective intergroup communication. Sage Publications.
Kim, Y. Y. (2016). Communication and cross-cultural adaptation: An integrative theory. Routledge.
Lavine, H., & Snyder, M. (1996). Cognitive processing and the functional matching effect in persuasion: The mediating role of subjective perceptions of message quality. Journal of Experimental Social Psychology, 32(6), 580-604.
Neuliep, J. W. (2017). Intercultural communication: A contextual approach. Sage Publications.
Peng, K., & Nisbett, R. E. (1999). Culture, dialectics, and reasoning about contradiction. American Psychologist, 54(9), 741-754.
Shiraev, E. B., & Levy, D. A. (2016). Cross-cultural psychology: Critical thinking and contemporary applications (6th ed.). Routledge.
Tajfel, H., & Turner, J. C. (1979). An integrative theory of intergroup conflict. The social psychology of intergroup relations, 33(47), 74.
Thomas, D. C. (2017). Cross-cultural management: Essential concepts. Sage Publications.
Triandis, H. C. (1995). Individualism & collectivism. Westview Press.
Vognar, E. (2014). The importance of cultural differences in international business. Forbes. Retrieved from https://www.forbes.com/sites/iese/2014/01/21/the-importance-of-cultural-differences-in-international-business/?sh=3a7d14e4456d.

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Essay: The Fourth Amendment

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The Fourth Amendment to the United States Constitution was included as a component of the Bill of Rights on December 15, 1791. This amendment is known for shielding individuals from the seeking of their homes and private property without appropriately executed court orders. The Fourth Amendment of the U.S. Constitution gives, “the privilege of the general population to be secure in their people, houses, papers, and impacts, against absurd inquiries and seizures, should not be abused, and no Warrants might issue, but rather upon reasonable justification, bolstered by Oath or assertion. The fourth amendment, search and seizure was designed to protect personal privacy during searches and detentions from police officials. (Thomson Reuters, 2018) According to the U.S constitution every citizen not matter their race, beliefs, or gender has a right to be free from unreasonable government intrusion. Free from government intrusion because as an individual there is legitimate expectation of privacy. Entitled privacy inside of their homes, clothing, purses, luggage, vehicles, or place of business, etc. Depicting the place to be sought, and the people or things to be grabbed.” a definitive objective of this arrangement is to ensure individual’s’ entitlement to protection and flexibility from self-assertive administrative interruptions. (Thomson Reuters 2018) The Fourth Amendment has its underlying foundations somewhere down in the core of English customary law. In Seymane 1604, the court perceived that the King did not have boundless specialist to enter his subjects homes yet that under certain lawful procedures where such interruptions were fundamental, the operators needed to pursue proper method.(Swindle Law Group 2018) The English citizenry confronted a phenomenal ascent in inquiries and seizures utilizing general warrants. In the case of Entick v. Carrington, Charles Pratt, and first Earl Camden reached the legitimate decision that an inquiry did by the respondent for the sake of the ruler was unlawful. The general warrant approved the seizure of the Plaintiff’s papers and not specific ones, and that the warrant needed reasonable justification. This case turned into the point of reference whereupon all other criminal and common cases under precedent-based law are resolved. The United States Congress perceived the need to guarantee residents that their entitlement to protection would not be damaged. Courts generally use a two area test to choose if, at the period of the request, a prosecutor had a genuine want for security in the place or things looked for. For example, a man who uses an open restroom envisions that it will not be spied upon and by far most would see that it sensible. (Nolo 2014) Along these lines, the foundation of a covered camcorder by the police in an open restroom would be seen as a request and would be subject to the Fourth Amendment’s need of sensibility. Another example would be if an officer stops a vehicle while talking with the driver happens to see a weapon on the explorer arrange, there’s been no chase under the Fourth Amendment this is the fact that the driver considered the seat to be a private place. The Court held that the physical testing by the police of the sack’s outside for verification of goods set up a request subject to Fourth Amendment. (Nolo 2014) If the Fourth Amendment is disregarded various things can happen. For example, the exclusionary rule. If the court finds out that an outlandish pursuit happened, any proof seized because of it can’t be utilized as immediate proof against the respondent in a criminal arraignment. This rule, set up by the U.S. Preeminent Court in 1961, has come to be known as the exclusionary rule. Numerous individuals scrutinize the exclusionary decide on the ground that it unreasonably releases the criminal free. The standard’s supporters contend that barring wrongfully seized proof is important to prevent police from directing unlawful hunts. As indicated by this prevention contention, the police are less inclined to direct ill advised pursuits if the subsequent proof can’t be utilized to convict the litigant. This rule is vividly known as the “product of the toxic tree” principle. The tree is the proof that the police wrongfully seize in any case; the organic product is the second age result of the illicitly seized proof. Both tree and natural product are ordinarily forbidden at preliminary.(Nolo 2014) The State of Massachusetts was the principal province to make laws that ensured the security of the citizenry. The 1756 laws banned the utilization of general warrants which had represented a difficult issue particularly after endeavors to establish the Excise Act of 1754. James Otis spoke to a gathering of traders who requested of the court to look at the issues of general warrants and writs of help. In spite of the fact that the court decided for the law, Otis won the race to the Massachusetts Colonial Legislature where he assumed a critical job in passing enactment that required writs of help to be issued by judges or judges. John Adams, George Washington’s Vice President named Otis’ splendid assault of the English general Warrants as ”the start of the American Revolution . Virginia discharged the Virginia Declaration of Rights which turned into the format for the Fourth Amendment. Private interruptions not acting in the shade of administrative expert are exempted from the Fourth Amendment. The Founders trusted that flexibility from government interruption into one’s house was a characteristic right (one allowed from God) and crucial to freedom. The possibility that natives ought to be shielded from irrational hunts and seizures backpedals far into English history. In 1604, Sir Edward Coke initially recognized this privilege. He said that “The place of each one is to him as his château and post, too for his safeguard against damage and savagery with respect to his rest.” Reasonable suspicion to believe the driver broke the law is typically why a vehicle stop occurs. It is considered a seizure for the Fourth Amendment when police stop a vehicle. For vehicle searches to be justifiable the initial stop must have been lawful. There is only a number of limited circumstances such as immigration, DUI checkpoints, and roadblocks, which allow law enforcements the ability to detain vehicles without reasonable suspicion. A traffic violation does not give the police the right to search the inside of an automobile. There must be probable cause, therefore preventing in some cases unreasonable search and seizures. While an individual is being searched and seized by the police there is a “safeguard” that prevents unlawfully seized items from being able to be used as evidence in cases. However that “safeguard” is often overruled by the courts and the evidence found by police officers after illegal stops may be used. The evidence can be used if the officers conducted their searches after learning that the defendants had outstanding arrest warrants. An investigation by Post reports 2,000 warrants were served by the police between January 2013 and January 2015, but only 284 cases, roughly fourteen percent were the result of police arresting someone on the street for possession of drugs or a weapon. In a system supposedly designed to be fair and be equal to all, it is no secret which group of individuals are targeted when it comes to suspicious activity leading to unreasonable searches and seizure. After being searched, seized, and arrested for the illegal activity in D.C a follow up with a warrant to search the residence is conducted. Often the follow ups are the black communities the Post reported. The follow up warrant search to the resident is based on training and experience for police and not actual evidence pointing to the criminal activity. Believing that if they caught someone on the street with illegal substances or weapons, searching their home would lead them to a much bigger criminal case. As stated in an article in The Washington Post the police in D.C are acting on very little or scant evidence in pursuit of illegal activity happening. Specifically drugs and guns often resulted in the wrong homes being raided and or only small amounts of drugs being found. There is no real case being made. More than often damage to ones property from the searches occur without an explanation. Forty percent of the cases police leave empty handed (The District Police’s Unreasonable Searches and Seizures). Alec Karakatsanis, an attorney is challenging this specific practice of the courts. Questioning whether these warrants are being thoroughly and diligently reviewed or not. “They have turned any arrest anywhere in the city into an automatic search of a home, and that simply cannot be,” said Alec Karakatsanis. In circumstances like this where policing tactics are leading to unreasonable search and seizure is occurring, it arises a question. The State of Massachusetts was the main province to make laws that secured the protection of the citizenry. The 1756 laws prohibited the utilization of general warrants which had represented a difficult issue particularly after endeavors to authorize the Excise Act of 1754. James Otis spoke to a gathering of shippers who requested of the court to look at the issues of general warrants and writs of help. In spite of the fact that the court decided for the law, Otis won the decision to the Massachusetts Colonial Legislature where he assumed a noteworthy part in passing enactment that required writs of help to be issued by judges or judges. John Adams, George Washington’s Vice President named Otis’ splendid assault of the English general Warrants as ”the start of the American Revolution’ (Adams, Charles). Virginia discharged the Virginia Declaration of Rights which turned into the layout for the Fourth Amendment. Search, The Supreme Court in Katz v. United States, 389 U.S 347(1967) ruled that the definition of search as when a person’s privacy is in the search. The facts of the ruling were that as per the definition, a search did occur when the government wiretapped a telephone booth. This became the threshold for jurisprudence of this Amendment, because the court analysis ends if no search and seizure occurs. Seizure, The fourth Amendment prohibits unreasonable seizure of any person or personal property without proper authorization i.e. a warrant. In legal terms, seizure of property is when there is significant interference by the government with an individual’s possessions.(Weiss 2018) The exception to this rule is that a seizure does not happen when the government questions an individual in a public place. The person is said to be seized if his freedom of movement is infringed. Amid the Colonial period, the King of England took a gander at the American settlements as basically a money related speculation. England passed various income gathering bills went for producing however much cash from the pilgrims as could be expected. Clearly, the homesteaders disliked this demonstration by the King and started carrying operations so as to go around the custom assessments forced by the British Crown. Accordingly, King George started the utilization of the advantageously worded “writs of help.” These were legitimate court orders that were to a great degree wide and general in extension. English specialists could acquire a writ of help to look any property they accepted may contain booty merchandise. They could really enter somebody’s property or home with no notice and with no reason. Specialists could grill anybody about their utilization of customized products and drive collaboration of any individual. These sorts of inquiries and seizures turned into a shocking attack against the general population of the settlements. To have standing to claim protection under the Fourth Amendment, one must first demonstrate an expectation of privacy, which is not merely a subjective expectation in mind but an expectation that society is prepared to recognize as reasonable under the circumstances. For instance, warrantless searches of private premises are mostly prohibited unless there are justifiable exceptions; on the other hand, a warrantless seizure of abandoned property usually does not violate the Fourth Amendment.(Weiss 2018) Moreover, the Fourth Amendment protection does not expand to governmental intrusion and information collection conducted upon open fields. An Expectation of privacy in an open field is not considered reasonable. However, there are some exceptions where state authorities granted protection to open fields. In the case Mapp v. Ohio, three Cleveland police officers arrived at the petitioner’s residence pursuant to information that a bombing suspect was hiding out there and that paraphernalia regarding the bombing was hidden there. The officers knocked and asked to enter, but the petitioner refused to admit them without a search warrant after speaking with her attorney. The officers left and returned approximately three hours later with what purported to be a search warrant. A Warrant-Under the Amendment states that police and government agents cannot search and seize evidence without proper and written authorization from a court of law. This authorization must state the reasons why the search is necessary, and the items to be seized. The exceptions of this are if the object or item is in clear view, or using the open fields doctrine, exigent or reaction circumstances, motor vehicle exception and searches incident or related to a lawful arrest. It is not applicable where consent is given by the individual. When the petitioner failed to answer the door, the officers forcibly entered the residence. The petitioner’s attorney arrived and was not permitted to see the petitioner or to enter the residence. The petitioner demanded to see the search warrant and when presented, she grabbed it and placed it in her shirt. Police struggled with the petitioner and eventually recovered the warrant. The petitioner was then placed under arrest for being belligerent and taken to her bedroom on the second floor of the residence. The officers then conducted a widespread search of the residence wherein obscene materials were found in a trunk in the basement. The petitioner was ultimately convicted of possessing these materials. Mapp argued that her Fourth Amendment rights had been violated by the search, and eventually took her appeal to United States Supreme Court. At the time of the case unlawfully seized evidence was banned from federal courts but not state courts. The U.S. Supreme Court ruled in a 5-3 vote in favor of Mapp. The high court said evidence seized unlawfully, without a search warrant, could not be used in criminal prosecutions in state courts. In the case Weeks v. United States 232 U.S. 383 (1914) police entered the home of Fremont Weeks and seized papers which were used to convict him of transporting lottery tickets through the mail. This was done without a search warrant. Weeks took action against the police and petitioned for the return of his private possessions. In a unanimous decision, the Court held that the seizure of items from Weeks’ residence directly violated his constitutional rights. The Court also held that the government’s refusal to return Weeks’ possessions violated the Fourth Amendment. To allow private documents to be seized and then held as evidence against citizens would have meant that the protection of the Fourth Amendment declaring the right to be secure against such searches and seizures would be of no value whatsoever. This was the first application of what eventually became known as the “exclusionary rule.” Stop and frisk is when police temporarily detain somebody and pat down their outer clothing when there are specific articulable facts leading a reasonable police officer to believe a person is armed and dangerous.(Board Editorial 2016) It is not necessary for the officer to articulate or identify a specific crime they think is being committed, only that a set of factual circumstances exist that would lead a reasonable officer to have a reasonable suspicion that criminal activity is occurring. Reasonable suspicion is one step below probable cause and one step above a hunch. (Weiss 2018) A “frisk” by definition is a type of search that requires a lawful stop. Stop and Frisk is a separate act, but in practice a suspect who refuses to answer while being questioned and stopped is known to be providing the officer with sufficient justification to continue and frisk. A frisk should not be for anything other than a dangerous weapon or contraband. However, if other evidence, like a suspected drug container, is felt, it can be seized by the officer under the “plain feel” doctrine. The test for plain feel is that the item’s contraband nature be “immediately apparent”. The Terry v Ohio 392 U.S 1 (No. 67) the case took place on December 12th of 1976 a detective (McFadden) was observing two strangers on a street corner. He watched them proceed back and forth. McFadden proceeded to watch the two strangers for a count of about 24 times. A third man joined the two strangers, but he quickly left according to Detective McFadden. Suspecting the men were up to no good after watching them, he assumed they were suspicious and planned a criminal attack. McFadden then decided he would follow the men. Approaching them making them come to a stop he identified who he was as a policeman, he then asked the three men to identify themselves. They mumbled allowing justification for McFadden to then began to frisk, patting down one of the men.(Find Law 2018) During the pat down of his outside clothing he found a pistol. He then ordered the three men into the store, removing the coat and then the pistol from the inside of the coat. Ordering the three men to face the wall with their hands raised. He patted down the outer clothing of Chilton and Katz two of the three men and seized a revolver from Chilton’s outside overcoat pocket.(Find Law 2018) The three were taken into custody and to the police station. Petitioner and Chilton were charged with carrying concealed weapons. The fourth amendment right against unreasonable searches and seizures, protects people, not places. It does not apply to the three men, for being a citizen on the street.Terry then filed a claim for invasion of privacy, feeling as if his 4th amendment right was violated and the case lacked evidence because there was no probable cause for the three men to be searched. The case was heard in the United States Supreme Court and decided on June 10th of 1968. Terry’s claim of the invasion of privacy did not withhold in court. The decision was in a favor of the state, agreeing with the decision McFadden actions were appropriate and that the men were a threat to society. (Find Law 2018 ) McFadden stopping the men prevented a crime from occurring. Are stop and frisk actions targeted toward a certain race. Is stop and frisk just another way for officers to “racially profile” African Americans. Terry v Ohio is a case that exhibits where stop and frisk was allotted without a real purpose. The three men were monitored vigorously by a detective, the amount of times they walked back and forth were even a counted for , and then stopped and searched. All of these actions were taken because their actions seemed skeptical to the detective that studied their every move. In a bigger city such as New York stop and frisk tactics used by cops were ruled unconstitutional violated the fourth and 14th Amendment. A Federal Judge, in Manhattan has ruled that New York police violated the Constitution when targeting “the right people” with stop-and-frisk tactics. Minorities were targeted under unreasonable policies encouraging more police stops to combat crime. U.S. District Judge Shira Scheindlin wrote in a 195-page decision. “A police department may not target a racially defined group for stops in general—that is, for stops based on suspicions of general criminal wrongdoing—simply because members of that specific group appear frequently in the police department’s suspect data,” she wrote. Scheindlin found violations of the Fourth Amendment’s ban on unreasonable searches and the 14th Amendment’s equal protection clause. As a remedy, the judge appointed lawyer Peter Zimroth of Arnold & Porter to monitor police conduct. “In light of the very active and public debate on the issues addressed in this opinion—and the passionate positions taken by both sides—it is important to recognize the human toll of unconstitutional stops,” Scheindlin wrote. “While it is true that anyone stop is a limited intrusion in duration and deprivation of liberty, each stop is also a demeaning and humiliating experience. No one should live in fear of being stopped whenever he leaves his home to go about the activities of daily life. Those who are routinely subjected to stops are overwhelmingly people of color, and they are justifiably troubled to be singled out when many of them have done nothing to attract the unwanted attention.” ( Goldstein 2013) Scheindlin researched showed statistics on 4.4 million police stops made between January 2004 and June 2012, and said a forms database indicated at least 200,000 were made without reasonable suspicion. Officers were pressured to increase their stops, and the city did nothing when the disclosure of information that stops were being made in a racially skewed manner, she composed.( Goldstein 2013) Supervisors routinely reviewed the productivity of officers, but did not review the facts cited to justify such stops to determine whether they were legally sufficient. “This is a form of racial profiling,” Scheindlin disclosed. “While a person’s race may be important if it fits the description of a particular crime suspect, it is impermissible to subject all members of a racially defined group to heightened police enforcement because some members of that group are criminals. The equal protection clause does not permit race-based suspicion.” According to Scheindlin’s opinion, 52 percent of the 4.4 million police stops were followed by a frisk for weapons. ( Goldstein 2013) A weapon was found after 1.5 percent of those frisks. In 52 percent of those 4.4 million stops, the person stopped was black; in 31 percent the person was Hispanic; and in 10 percent the person was white. Weapons were seized in 1 percent of the stops of blacks; 1.1 percent of the stops of Hispanics; and 1.4 percent of the stops of whites. Contraband other than weapons was seized in 1.8 percent of the stops of blacks; 1.7 percent of the stops of Hispanics; and 2.3 percent of the stops of whites. Scheindlin illustrated poor police training by citing differing testimony on what constituted “furtive movements” used to justify stops. One officer said it could mean changing direction, walking a certain way, being fidgety, stuttering, looking back and forth, adjusting a hip or belt, grabbing at a pocket, acting a little suspicious, going in and out of a location, and moving into and out of a car too quickly. “If officers believe that the behavior described constitutes furtive movement that justifies a stop,” Scheindlin wrote, “then it is no surprise that stops so rarely produce evidence of criminal activity.” Scheindlin issued her opinion after a two-month bench trial, the New York Times reports. The story calls the decision “a repudiation of a major element in the Bloomberg administration’s crime-fighting legacy.” ( Goldstein 2013) A 63-year-old African American woman by the name of Sallie Taylor (Washington Post) was one of the searches that went wrong. Police are using faulty data when issuing these resident warrant searches. Her property was damaged, she was held at gunpoint and overall terrified. Little to no explanation on why the police raided her home looking for someone else based off of a search and seizure case. A situation like Ms. Sallie Taylors raises a great concern; innocent people are negatively affected and being troubled by the police and their tactics. (Washington Post) Are there other policing forces in different cities taking advantage of the fourth amendment of search and seizure just in a different manner? The Plan Sight Doctrine is defined as if a law enforcement officer has a legal right to be in plain sight or can smell parts of illegal contraband; they have the right to seize the contraband or evidence and arrest individuals. However the plain sight doctrine it can be justified. In the case Arizona v Hicks, (1987) No. 85-1027 a bullet fired through the floor of the respondents apartment, injuring the man below. Police entered the home in search for the shooter, for other victims, and for weapons. (Arizona v. Hicks 2018)While there they seized three weapons and discovered a mask. They also noticed two sets of expensive stereo components and a turntable, suspecting they were stolen. Following protocol the officer recorded the numbers and called them in. Learning that the turntable had been taken in an armed robbery, he seized it immediately. In this case a warrantless search must be “strictly circumscribed by the exigencies which justify its initiation.” The court agreed the policeman’s obtaining the serial numbers violated the fourth amendment right. It was unrelated to the reason why he was there, which was the shooting. Ruling in favor of the defendant. (Arizona v. Hicks 2018) The fourth amendment protects people from the government being able to search and seize. An example when the fourth amendment does not protect your rights is when security personnel ask to seek and search your belongings. For instance, a mall cop may ask to look inside your purse and it is not considered illegal. It is not considered a violation of your rights. If a mall cop finds illegal drugs, the drugs may be turned over to the police and the evidence is admissible in court.

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The first amendment, administering the fourth amendment in the digital age.

By Jim Harper , [1] vice president of the Competitive Enterprise Institute. Previously, Harper was a senior fellow at the Cato Institute. A former counsel to committees in both the U.S. House and the U.S. Senate, he went on to represent companies such as PayPal, ICO-Teledesic, DigitalGlobe, and Verisign, and in 2014 he served as Global Policy Counsel for the Bitcoin Foundation.

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Stare decisis is the valued judicial practice of extracting the underlying principle from precedent, the ratio decidendi , and applying it to present cases. [2] But what happens to the principle behind a prescient dissent—the ratio dissensi , if you will—when a majority’s decision later proves wrong? Almost ninety years ago, an understated Supreme Court Justice left crumbs of insight in a dissent that may help solve the riddle of applying the Fourth Amendment, particularly to modern communications and data. [3] His thinking can help construct a more complete, reliable, and truly juridical method for administering the Fourth Amendment. Advocates and courts should look to his prescient ratio dissensi .

Pity Justice Butler. Next to contemporaries such as Oliver Wendell Holmes, Jr., Louis D. Brandeis, and Benjamin Cardozo, Pierce Butler occupies second-tier status in history’s assessment of Supreme Court justices. A conservative Democrat put forward by a Republican president, Butler was a controversial nominee for the Court. One of his Minnesota home-state senators opposed him, as did progressive lion Robert LaFollette, Sr., a Republican from Wisconsin. The opposite end of the ideological spectrum did Butler no favors: the Ku Klux Klan opposed his nomination because he was a Catholic.

Justice Butler wrote more than 300 opinions in his sixteen years of Supreme Court service, but few stand out today. He is best remembered as one of the “four horsemen” who lost their constitutional stand against President Franklin Delano Roosevelt’s expansive “New Deal” programs. [4] But time has vindicated some of Justice Butler’s work on the Court, including notable dissents.

Butler alone rejected Oliver Wendell Holmes, Jr.’s now notorious reasoning in Buck v. Bell , [5] for example. Allowing forced sterilization of a woman, Holmes wrote coldly for the majority: “Three generations of imbeciles are enough.” [6] The Nazis’ use of eugenics the next decade cast more than a little pall over the practice, and Skinner v. Oklahoma effectively ended forced sterilization in 1942. [7] Score one for the conscience of Justice Butler.

Likewise, in Palko v. Connecticut , [8] Butler alone disagreed with Justice Cardozo’s ruling that the Constitution’s protection against double jeopardy did not apply to the states. The Court reversed itself on this question three decades later. [9] Score another.

Butler was a legal technician, and his areas of focus were not what generally capture public and scholarly attention. His approach to opinion writing “stressed simplicity and minimalism,” according to a history by David R. Stras, now a Minnesota Supreme Court justice himself, “and it was rare indeed when he used rhetorical flourishes to argue a point.” [10] So it is not surprising that Justice Butler’s dissent in Olmstead v. United States [11] has remained obscure behind the fanfare of his brother Louis Brandeis’s dissent. But time may yet vindicate Justice Butler’s reasoning, especially given its usefulness for applying the Fourth Amendment to the digital world.

Olmstead , of course, was the 1928 case in which the Court found that a Fourth Amendment search had not occurred when government agents wiretapped the telephones of suspected bootleggers. Justice Brandeis, co-author of a Harvard Law Review article called “The Right to Privacy” forty years earlier, [12] inveighed against the ruling using powerful and persuasive language. “The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness,” he wrote:

They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone—the most comprehensive of rights and the right most valued by civilized men. [13]

Posterity has favored Brandeis’s passion. Commentators and scholars today still quote and muse over his formulation of “the right to be let alone.” [14] They explore how that notion might be implemented to preserve the values that the Framers held dear.

But Brandeis’s words did not found a sustaining rationale for Fourth Amendment protection. The proof is in the eating of the pudding: Modern Fourth Amendment jurisprudence is a muddle, and it is sorely challenged by advances in information technology. This is particularly poignant because Brandeis foresaw the surveillance capabilities enabled by today’s information and communications technologies. “Ways may someday be developed,” he wrote, “by which the Government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.” [15]

The case that reversed Olmstead , of course, was Katz v. United States . [16] In Katz , thirty-nine years later, Justice Harlan shared his sense of how the Constitution controls government access to private communications in his solo concurrence: “My understanding,” he wrote, “is that there is a twofold requirement, first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’” [17]

Since then, courts have analyzed whether defendants have had a “reasonable expectation of privacy” in information or things. Under Justice Harlan’s concurrence, if not the Katz majority’s rationale, the defeat of a “reasonable expectation of privacy” signals a constitutional search generally requiring a warrant. [18]

That doctrine has not worked. Courts rarely follow the full analysis Justice Harlan’s formulation suggests. They rarely inquire into a defendant’s “actual (subjective) expectation of privacy,” for example, or how it was “exhibited.” [19] The second half of the test requires judges to use their own views on privacy as a proxy for objectivity, though they are neither public opinion researchers nor sociologists. Against litigants importuning about privacy, courts after Katz have found as often as not that the Fourth Amendment does not protect the security of sensitive and revealing information.

In Smith v. Maryland , [20] for example, one of the leading communications privacy cases, the Supreme Court found that placement of a pen register [21] on a suspect’s phone line without a warrant did not violate the Fourth Amendment. [22] “[W]e doubt that people in general entertain any actual expectation of privacy in the numbers they dial,” Justice Blackmun wrote. [23] Walking through the influences that would suppress expectations of privacy in phone-dialing, and none that would support it, [24] he said, “It is too much to believe that telephone subscribers, under these circumstances, harbor any general expectation that the numbers they dial will remain secret.” [25]

A Court without Justice Brandeis’s passion for privacy is evidently quite free to undercut it. So in United States v. Karo , [26] government agents had arranged with an informant to surreptitiously install a radio beeper in a container. They used the presence of the beeper in the container over a period of several days to locate it at three different residences and in the driveway of a fourth, to locate the container in a pair of self-service storage facilities, and also to locate it in transit—all the while unable to suffer the inconvenience of getting a warrant. [27] The Court did not examine whether all this warrantless beeper-tracking was reasonable. It gave the once-over to Karo’s expectation of privacy and found his (presumed) feelings unreasonable. [28]

More recently, the “reasonable expectation of privacy” test produced a ruling that government agents’ examination of a stopped vehicle with a drug-sniffing dog is not a Fourth Amendment search. [29] It is hard to think of a word better than “search” for such highly focused analysis of whether certain particulates exist in the air. Some cases certainly have maintained the protection the people have from inquisitive government agents, but the “right to be let alone” has not fared all that well when privacy and expectations thereof have been the locus of the Court’s decision-making.

If Justice Brandeis’s passion did not lay the groundwork for sound administration of a strong Fourth Amendment right, perhaps Justice Butler’s Olmstead dissent could. His challenge to the majority decision eschewed feelings, instead examining the legal status of telephone conversations:

The contracts between telephone companies and users contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass. During their transmission, the exclusive use of the wire belongs to the persons served by it. Wiretapping involves interference with the wire while being used. Tapping the wires and listening in by the officers literally constituted a search for evidence. [30]

The communications belong to the parties between whom they pass . [31] It is a fascinating—and very different—way of thinking about what happened in Olmstead . Justice Butler would have protected Olmstead’s calls from warrantless wiretapping not because it is part of human essence to have communications remain private, as Justice Brandeis said, but because people’s conversations are not the government’s to listen to.

Justice Butler’s formulation holds the seeds of an alternative way to administer the Fourth Amendment. It is technical and value-free, but it offers the hope of better Fourth Amendment administration because it is more susceptible to sound application than current Fourth Amendment doctrine. Its use would provide consistent and reliable protection for Americans’ liberties and a stable rule for law enforcement in a time of technological change.

Courts in Fourth Amendment cases should decline to invoke doctrine that requires them to make broad social pronouncements. Rather, they should apply the text of the Amendment and general legal principles as literally as possible to the facts of cases. That is not always easy, and it requires new and deeper analysis of what it means to “search” and to “seize.” It also requires fuller awareness of property and contract rights as they apply to communications and data. But it is a more methodical judicial exercise than applying “reasonable expectations” doctrine, and it would achieve the current Court’s goal of preserving “that degree of privacy against government that existed when the Fourth Amendment was adopted.” [32] Applying the law to the facts is the better way to administer the Fourth Amendment.

Administering the Fourth Amendment

The first phrase of the Fourth Amendment says, “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” [33] Absent doctrine, courts would analyze its elements as follows:

Was there a search?
Was there a seizure?
Was any search or seizure of “persons, houses, papers, [or] effects”?
Was any such search or seizure reasonable?

If there was a search or seizure, if it was of protected things, and if it was unreasonable, then the right has been violated. That is how to administer the Fourth Amendment.

Though the Supreme Court is not plain about it, it uses this simple construct for analyzing easy Fourth Amendment cases. [34] In harder cases, such as when communications and data are involved, the concepts of “search” and “seizure” seem harder to apply, and the Court retreats to confusing and malleable “reasonable expectations” doctrine.

But the standard—simplistic—mode of interpretation noted above can be used in all Fourth Amendment cases, including those dealing with communications and digital materials. There are direct parallels between protected communications technologies used at the time of the Framing and today’s. Applying the words of the Fourth Amendment, background legal principles, and an understanding of technology, it is possible to administer the Fourth Amendment in all cases without artifice.

The exercise begins with identifying seizures—which are government invasions of any property right—and searches—focused sensing that is often signaled by efforts to bring exposure to concealed things. Discerning seizures and searches requires some careful thinking and a modicum of technical knowledge because current doctrine has obscured the concepts and the technological environment is changing. But courts can and should determine in all cases if government agents have seized or searched items protected by the Fourth Amendment, and if they have done so unreasonably.

Seizures and Searches in Riley

The Supreme Court’s recent decision in Riley v. California [35] can model the exercise of spotting seizures and searches, including with respect to digital devices and data. David Riley’s encounter with the San Diego police included a large number of seizures and searches: of Riley, Riley’s car, his phone, and his data. The legal bases for these seizures and searches shifted, grew, and ultimately found their limit.

The case began on August 22, 2009, when Officer Charles Dunnigan observed Riley driving an Oldsmobile with expired registration tags. Dunnigan pulled Riley over, seizing him and his car. [36] Officer Dunnigan was allowed to do this given his reasonable suspicion that an infraction had occurred. [37] Upon learning that Riley was driving with a suspended driver’s license, Officer Dunnigan removed him from the car, continuing the original seizure of Riley with an additional legal basis for doing so: reasonable suspicion of another violation.

Officer Dunnigan was then joined by an Officer Ruggiero, who prepared the car for impoundment consistent with a policy that prevents suspended drivers from returning to, and continuing to operate, their vehicles. No longer seized for the purpose of a brief investigation, the car was now seized in order to prevent additional driving infractions.

Officer Ruggiero began an “impound inventory search” of the car, a procedure the Supreme Court approved as reasonable in South Dakota v. Opperman . [38] To be precise, an inventory search of a car is executed through a series of small seizures in addition to, and conceptually distinct from, the seizure of the car as a whole. Officer Ruggiero exercised further dominion over the car by opening the hood, for example, the trunk, and other compartments. Though they were not his, he no doubt took control of items in the car (seized them) by picking them up or moving them to facilitate the inventory.

Officer Ruggiero’s search turned up guns in the engine compartment of the car. This gave Officer Dunnigan probable cause to believe Riley had committed another, more serious crime. He placed Riley under arrest, continuing the ongoing seizure of Riley’s body under new legal authority.

In the course of placing Riley under arrest, Officer Dunnigan also searched his person, undoubtedly doing so by placing his hands on Riley. The difference between the felt contours of Riley’s body and other things under his clothes would reveal weapons or other items that could endanger Officer Dunnigan, as well as evidence Riley might dispose of. This search was distinct from the ongoing seizure of Riley, and its legal basis was different, too. Chimel v. California permits searches incident to arrest to aid in the discovery of weapons or of evidence that suspects might destroy. [39]

Consistent with standard practice for a “booking search,” which is yet another legal basis for both searching suspects and seizing their property, [40] Officer Dunnigan examined Riley’s person and seized his possessions, including his cell phone, so he could safely transport and house his arrestee.

The lower court’s description of events is not detailed, but at some point in the process, Officer Dunnigan “looked at Riley’s cell phone,” and “he noticed all of the entries starting with the letter ‘K’ were preceded by the letter ‘C’,” [41] an indication of affiliation with the “Bloods” gang, whose members self-characterize as “Crip Killas.” It is possible that these entries were in plain view, displayed by the otherwise untouched phone as Officer Dunnigan seized it. The likelihood is that Dunnigan caused the entries to be displayed by manipulating the phone. This was an additional series of seizures in the form of “use.” Those seizures together facilitated a separate, additional search for more information about Riley. Later, at the station, Detective Malinowski, who had come at the request of Officer Dunnigan, “looked through the phone,” turning up photos that corroborated other evidence suggesting that Riley was involved in gang activity.

Officer Dunnigan’s and Detective Malinowski’s searches of the phone have similarities to the inventory search of a car. Both searches were executed through a series of small seizures. Data in a phone obviously does not display itself. Rather, the phone responds to commands issued via taps, touches, and swipes on buttons and screens. Looking through the phone made use of its electronics, the battery, the display technology, and the data, none of which are ordinarily the government’s property to use. The power of Officer Dunnigan and Detective Malinowski to use the phone this way is what Riley contested in the Supreme Court. [42]

In Riley , as in many Fourth Amendment cases, there were many separate instances of searching and seizing. The imperfect record in the case suggests three substantial seizures and many more minor ones, with six legal justifications among them. The five searches in the case had three legal bases. Courts often lump these activities together, which can be an efficient shorthand. But sometimes, glossing over details results in lost fidelity to both the facts and the protections of the Fourth Amendment.

The most sensible, faithful, and articulate application of the Fourth Amendment’s elements starts with seizures and searches. Because seizures so often precede searches in time, or constitute them, the first question to ask is whether a given fact pattern included any seizure.

The Supreme Court has rarely defined “seizure” distinctly from “search.” [43] This is in part because small seizures are often the means by which government agents reveal the information they seek. Seizures are constituents of an overall search. Whether or not there is any searching, though, a seizure exists whenever government agents infringe a property right, [44] including the property right people have in their own persons.

We can see what seizure looks like, and how it commonly interacts with search, in a case as familiar as Terry v. Ohio . [45] In Terry , a plain-clothes police detective observed three men acting strangely and became suspicious that they were “casing” a store for a “stick-up.” [46] Stopping them some blocks away and receiving an unsatisfactory answer to his questions, Officer McFadden “grabbed petitioner Terry, spun him around . . . and patted down the outside of his clothing.” [47] Doing so revealed a gun.

The government urged the Court to place brief “stop and frisk” incidents like this outside the Fourth Amendment, [48] arguing that police behavior short of a “technical arrest” or a “full blown-search” did not implicate constitutional scrutiny. [49] The Court rejected the idea that there should be a fuzzy line dividing “stop and frisk” from “search and seizure.” It wrote with precision about the seizure, then the search, of Terry: “[T]here can be no question . . . that Officer McFadden ‘seized’ petitioner and subjected him to a ‘search’ when he took hold of him and patted down the outer surfaces of his clothing.” [50] One following the other, the seizure and search were reasonable and therefore constitutional. Though Justice Douglas dissented from the ruling, he agreed that Terry was “seized” within the meaning of the Fourth Amendment. [51] “I also agree,” he wrote, “that frisking petitioner and his companions for guns was a ‘search.’” [52]

Often, as in Terry , a seizure or seizures, and the search they facilitate, have the same legal justification—or they both lack one. So in United States v. Jones , [53] a recent case where government agents attached a GPS device to a vehicle to track its owner, the Court struck down Jones’s conviction because “[t]he Government physically occupied private property for the purpose of obtaining information” without a warrant. [54] The invasion of a property right in making use of the car and the searching that use facilitated violated the Fourth Amendment the same way. [55] This was also true of moving pieces of stereo equipment to search for the serial numbers on them in Arizona v. Hicks . [56]

Seizures and searches are not the same, and they do not always occur together. In Soldal v. Cook County , [57] government agents seized a mobile home—literally helped take it from its owner—making no search of it. [58] In Kyllo v. United States , [59] there was a search without a seizure. Government agents used a thermal imager to observe heat emanations from a home, “a ‘search’ despite the absence of trespass.” [60]

At bottom, “seizure” is best administered as any government invasion of a property right. The extent of the seizure is not important, [61] and the question for administering the constitutional right is not whether an otherwise actionable trespass has occurred. [62] Any invasion of a property right is a potential constitutional “trespass”—in the broad sense meaning a “wrong”—which triggers continued analysis to see if it was indeed wrongful.

Modern precision also requires recognizing that seizure exists when government agents violate any incident of property ownership, including not only the right to possess property but also the right to use it. The right to exclude others and to the income of property—the enjoyment of its benefits—are yet more in what law students are taught to be the “bundle of sticks” that comprises property rights. [63]

Blackstone defined property as “that sole and despotic dominion . . . exercise[d] over the external things … in total exclusion of the right of any other.” [64] The U.S. Supreme Court, too, has focused on exclusion as the critical property right. In Loretto v. Teleprompter Manhattan CATV Corp ., the Court called the right to exclude “one of the most treasured strands” of the property rights bundle. [65] Kaiser Aetna v. United States called it “one of the most essential sticks.” [66]

The Supreme Court’s cases have sometimes wandered away from the full correlation between property rights and seizure that sound administration of the Fourth Amendment requires. Casual use of language in a spate of Fourth Amendment cases from the 1980s suggests that only possession—the “possessory” interest in property—is relevant to Fourth Amendment analysis. In United States v. Place , [67] for example, the Court discussed the “possessory” interest in luggage. [68] The Court in United States v. Jacobsen [69] found a seizure because destruction of powder infringed “possessory interests.” [70] And in United States v. Karo , [71] noted above, the Court found that installation of a beeper in a canister did not interfere with a “possessory” interest in the canister. [72] Arizona v. Hicks found that recording serial numbers from stereo equipment overturned for the purpose was not a seizure because it did not “‘meaningfully interfere’ with respondent’s possessory interest in either the serial numbers of the equipment.” [73]

Justice Stevens’s Karo dissent was correct, if muddy on distinctions among property rights: “Surely such an invasion is an ‘interference’ with possessory rights; the right to exclude . . . had been infringed.” [74] In 1990, Justice Stevens wrote more clearly about seizure of property for the majority in Horton v. California : [75] “a seizure deprives the individual of dominion over his or her person or property.” [76]

Seizures of Property Rights other than Possession

In the past, it may have been generally sound to treat deprivation of “possessory interests” as coterminous with constitutional seizure. Possession of movables is often the aspect of ownership that is material in Fourth Amendment cases—it certainly has been the easiest to recognize. But at least one court has treated seizure of a future interest as actionable under the Fourth Amendment, [77] and the limitation of seizure to the possessory interest does not translate to information or the information technology context. The interests that the Fourth Amendment protects can be invaded by depriving a person of the right to exclude others from data or by the use of information technologies without respect to possession.

The line between possession and use was what Officer Dunnigan crossed in Riley. He had properly seized Riley’s cell phone incident to arrest, [78] so his possession of the phone was rightful. But Dunnigan also used the phone, manipulating its interface and drawing down its battery power, to gather evidence. Using a device to bring stored information out of its natural concealment—by looking through photos on it, for example—does a great deal to threaten the interests that the Fourth Amendment protects. Chief Justice Roberts issued a crisp admonition for such seizure-based searches: “get a warrant.” [79]

Use of physical items that is otherwise unremarkable may become constitutionally significant if the use interacts with information technologies. The Jones case is an example. The government did not take possession of the defendant’s car, but by attaching their GPS device to it, they used the car to transport their location sensor. The government’s agents enjoyed the benefits of Jones’s vehicle, taking use and enjoyment without the legal right to do so, and they deprived Jones of his right to exclude others from the car. These seizures all underlaid their continuous, four-week search for Jones’s location. [80]

Detailed attention to property rights also explains seizure of data without reference to the device on which it is held, such as when government agents download or copy a suspect’s data. Data and information are properly thought of as property, though they have different propert ies than tangible items. Information and data are routinely held, used, and traded consistent with the sticks in the “bundle” conception of property. [81] This is true without reference to intellectual property legislation.

When government agents copy data or information that is otherwise unavailable for their use, they have taken the rights to use and enjoy that data’s benefits for the government, and the owner’s right to exclude others has been violated. [82] The owner’s rights to possess and to use the data are not typically compromised in these cases, of course, because the owner still retains a copy. Government agents invade no property right if communications and data are publicly available, or if they can otherwise lawfully access, copy, and use it.

As with telephones according to Justice Butler’s view in Olmstead , people use modern communications and Internet facilities under contracts that allocate property rights. Though hardly with perfect clarity, [83] these contracts detail how communications machinery will be used, and they divide up the ownership of information and data. The use of cables and switches is subdivided into nanoseconds and slivers of wavelength rather than minutes on a wire, but the contractual protections for customer privacy are similar—if more explicit and detailed—to what they were in the 1920s.

The Full Privacy Policy of Verizon, [84] for example, is a 5,000-word tome, describing in detail the company’s policies with regard to data collection, use, sharing, safety, and security. Verizon collects and derives customer-identifiable information subject to these contractual covenants. The communications and the data that result from it are partially the property of Verizon and partially the property of their customers, as defined in the privacy policy.

The general rule is that Verizon does not share customer data, and there are exceptions to the general rule. “We may disclose information that individually identifies our customers or identifies customer devices in certain circumstances, such as: . . . to comply with valid legal process including subpoenas, court orders or search warrants, and as otherwise authorized by law.” [85] This precludes Verizon from making disclosures in other circumstances, such as invalid legal processes. In terms of property, the right to exclude others from personal information belongs to the customer when legal processes are invalid. Government agents accessing their data invade the customer’s property right, a seizure.

It has been more than twenty years since the publication of Anne Wells Branscomb’s Who Owns Information? , [86] but awareness of common law and contract rights in information and data is still underdeveloped, and Fourth Amendment analysis suffers for it. In the areas where it is most important, such as legal services and health care, there is some recognition of information ownership, but contract rights are often interleaved with professional ethics and torts. [87] Government regulations also sometimes undercut contractual information rights. [88] But property rights in information and data are routinely allocated by contract. [89] Contract and property elucidate better than any other framework the sometimes finely subdivided ownership rights that attend to information and data. [90]

In the online world, the “cloud” metaphor probably confuses many by suggesting that there are not specific, identifiable, legally liable, and responsible service providers who facilitate Internet communications and services subject to contractual obligations. There are. [91] Through painstaking common law development, our society is determining the role of online statements, “clickwrap” licenses, and the like in articulating the rules under which communications and data are transmitted and stored. [92] Hurrying to establish legal frameworks that common law has not yet supplied, statutes dealing with event data recorders in automobiles do all but call the data they produce the property of the car owner. [93] The better view is that privacy policies and published Terms of Use statements are either explicit contract terms or attempts by the supplying party to establish, augment, or alter implied contract rights that govern the ownership of information, data, and communications.

Terminology used by Congress in federal legislation illustrates the general understanding that data and communications are property. Section 702 of the Telecommunications Act of 1996, [94] for example, says: “Every telecommunications carrier has a duty to protect the confidentiality of proprietary information of, and relating to, other telecommunication carriers, equipment manufacturers, and customers….” [95] Calling this data “Consumer Proprietary Network Information” (CPNI), Congress used the adjective “proprietary” because it conceived of the data and information that telephone companies amass essentially as property.

Doing so nests with communications and data being the subject of contract terms, and it does not exclude the same information being jointly owned by the customer. Indeed, the statute allocates some narrow statutory property rights in CPNI to telecommunications customers. Consumers can require telecommunications providers to disclose copies of their CPNI to them, [96] meaning the information is also theirs to possess and use if they want it. The privacy requirements of the statute can be avoided “with the approval of the customer,” [97] meaning that customers’ rights to exclude others from personal information and data are alienable, as property rights are.

Contracts between communications firms and their customers contemplate the private use of the facilities employed in the service. The communications belong to the parties between whom they pass, and much of the data about communications usage does, too. When government agents seize communications and data that are the property of telecommunications firms or their customers, this should trigger further Fourth Amendment analysis. Credit Justice Butler’s ratio dissensi in Olmstead .

Whether property is tangible or intangible, seizures occur whenever government agents invade a property right. Seizure includes not just taking possession, but taking away the right to exclude or taking the rights to use and enjoy property for oneself, including by operating digital devices or copying and using data. Courts administering the Fourth Amendment should recognize all the property rights that can be seized.

There are some nuances to this simple rule, of course. The Fourth Amendment limits its own application to persons, houses, papers, and effects. In the main, this means that it protects a smaller universe of things than property rights or common law trespass does. [98] The inclusion of “persons,” [99] on the other hand, extends the Fourth Amendment’s seizure protection to self-ownership. This is beyond what trespass law usually protects and what most people today think of as property, despite the intellectual endowments given by Locke and Madison. [100]

And, of course, the existence of seizure does not end the analysis; seizures may be reasonable. That question arises later in the process of applying the Fourth Amendment’s elements. If there was a seizure, it may stand for further analysis on its own. Often, though, seizures facilitate a search. The existence of a search is the next element of the Fourth Amendment analysis.

Seizing and searching are distinct activities, and the distinction matters in some cases. While “seizure” is based in legal conclusions about property rights, there is no common law of “search.” Natural language must guide whether looking (or other sensing) is so focused or directed that it crosses a threshold into the “search” category.

The word “search” suggests intentionality on the part of the actor, a purpose of finding something. [101] Advocates and courts should examine the actions of government agents and often literally ask them whether they meant to find something in particular. If they did, there was likely a search, later to be determined reasonable or unreasonable.

Sensing often rises to the level of searching in a way that is relatively easy to recognize. That is when government agents seek to bring information or things out of concealment. Picking up others’ things, for example, entering private property, and manipulating others’ persons, objects, devices, or data—these activities typically aim to expose something that was concealed. They signal directedness and focus that goes beyond casual and undirected looking, smelling, tasting, or feeling.

Because of their role in exposing concealed things, seizures make searches easy to recognize. But exposure can also be produced by the use of high-tech or specialized devices and observation techniques. In some cases, government agents may look so intently for something already exposed that the effort is a “search.” But most often the objective fact that they try to deprive something of concealment can guide the ‘search’ for “search.”

Concealment Subject to Search Produces Exposure

Familiar though they are, the concepts of “concealment” and “exposure,” are not often examined in constitutional or legal terms. New York v. Class [102] is a search case that helps explore their contours, and it illustrates how “concealment” and “exposure” can help administer the “search” question.

In Class , New York City police officers Lawrence Meyer and William McNamee pulled over Benigno Class for speeding and driving with a cracked windshield. While Officer Meyer talked to Class, who had exited the vehicle, Officer McNamee went to the car and opened its door—a small seizure—to look for its Vehicle Identification Number (VIN). Not finding it there, he reached into the interior of Class’s car to move some papers—another small seizure—that were covering the area of the dashboard where the VIN was located. Doing so, he espied a gun under the seat, which led to Class’s being charged with criminal possession of a weapon. [103] His small, seizure-based search was a success.

The Court ruled the opposite way, citing the lacking “expectation of privacy” in Vehicle Identification Numbers. [104] Rather than methodically analyzing the seizure question, the search question, and then reasonableness, the Court pronounced VINs non-private and re-interpreted activities focused on discovering particular concealed information as non-search.

Class illustrates how the “reasonable expectation of privacy” test turns an objective, essentially factual question—the existence or non-existence of a search—inside out. Doing so, the Court produced a wrong result. [105]

Kyllo v. United States , [106] decided in 2001, is a wonderfully instructive search case because it involved no seizure at all. It allows us to observe search in the abstract and see how concealment subjected to search produces exposure. Kyllo does not involve the familiar operation of light, of course, but radiation in a non-visible part of the electromagnetic spectrum.

In the case, agents of the U.S. Department of the Interior suspected that Danny Lee Kyllo was growing marijuana using high-intensity lamps in his home on Rhododendron Drive in Florence, Oregon. [107] From a public area, they aimed an Agema thermovision 210 thermal imager at his triplex. The imager displayed significantly more heat over the roof of the garage and on a side wall of Kyllo’s home than elsewhere on the premises. Using this and other information, the agents obtained a warrant, searched the home, and found the drugs they suspected.

Prior to the government agents’ actions, Kyllo’s domestic activities and his possessions were concealed. The opaque and impervious walls of his home physically prevented others from seeing, hearing, or smelling—and certainly from tasting—what occurred or existed within. Temperature differences among the home’s roof and exterior walls were invisible, disabling outsiders from drawing inferences about Kyllo’s domestic life. Kyllo’s property rights meant that others could not approach the house closely enough to peer in windows, sniff at side doors, or touch it to measure its exterior temperatures. Nor could they enter into the house. [108] But by using their thermal imager and making imperceptible radiation perceptible, the Interior Department’s agents undercut the concealment Kyllo had given to activities going on within his domicile. They exposed that there was a source of unusual heat inside, which allowed them to draw inferences about its cause. [109]

The Supreme Court found the use of thermal imaging on a home without a warrant to be a Fourth Amendment violation. “Where, as here, the Government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion,” the Court held, “the surveillance is a ‘search’ and is presumptively unreasonable without a warrant.” [110]

There’s a lot packed into that sentence, including the conclusion that this particular search was unreasonable. That question comes later in a methodical analysis. But in Kyllo concealed, imperceptible, and “unknowable” information was exposed through a search.

The Supreme Court has developed simple and administrable rules for the treatment of “exposure” under the Fourth Amendment. The majority in Katz , for example, said, “What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.” [111] If law enforcers can see, hear, smell, or feel something, they are entitled to take cognizance of it. This is the “plain view” doctrine, which the Court expanded on in Horton v. California . [112]

A parallel “plain concealment” doctrine would bring simplicity and symmetry to the question of whether things are available for government perusal. The rule should be that information one conceals from the general public is also concealed from government agents. When government agents seek to expose concealed things by defeating or eluding physical or human laws, it is a search. [113] This is not the exclusive signal of directed or focused sensing. Search can also exist if government agents intensely examine exposed things. But manufactured exposure is a strong signal of searching.

The Supreme Court is having mixed success with placing topical investigatory techniques and evidentiary materials, such as drug-sniffing dogs and DNA, within the concealment-versus-exposure rubric. Doing so with more precision would improve Fourth Amendment administration.

Sensitive to the ‘searching’ examination given by drug-sniffing dogs, for example, the Court has focused on the seizures that often attend the use of this investigatory tool. In Florida v. Jardines , for example, the Court found that bringing a drug-sniffing dog to the front door of a home exceeded the scope of the traditional license that property owners offer to uninvited guests. [114] “One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy,” the Court said. [115] In Rodriguez v. United States , [116] like Illinois v. Caballes before it, [117] the Court examined how long a suspect was seized so a dog could sniff around him for drugs.

These cases elide the central aspect of a drug-sniffing dog examination, which is to search for drugs. [118] They discover concentrations of particulates that suggest the presence of otherwise imperceptible, and thus concealed, illegal drugs. Drug-sniffing dogs are analogous to thermal imagers in that they take physical phenomena that are imperceptible to humans and make them perceptible. Trained dogs are cuddly chromatographs. The question when they do give exposure to something in or on a person, house, or effect is whether such a search was reasonable.

The Court has easily recognized that DNA analysis is a search, but it has somewhat muddled the concepts. The Court in Maryland v. King treated the buccal swab involved in gathering DNA as a “search.” [119] In fact, taking a sample of cheek cells is a seizure of that tissue, and the analysis of DNA in it to discern the identifying alleles was a search of that seized material. This kind of precision was not important in King , but it will be needed when a challenge to government agents’ DNA analysis of abandoned tissue arises. [120] It is almost certainly not a seizure to collect abandoned hair, saliva, or semen, but analyzing that bit of a person exposes concealed information. It is highly directed, technically enhanced observation: a search. Treating it as not searched because the bodily material is not seized would be an error.

The next step in the constitutional analysis is to find whether it is a constitutionally protected item, which may be a difficult question because such DNA is both abandoned and always a part of a person’s body. DNA analysis of material collected in a rape kit or from under the fingernails of a murder victim would likely be reasonable because the bodily material from which DNA is analyzed is itself direct evidence from the crime scene. Analysis of abandoned DNA collected from a suspect’s drinking glass should probably require a warrant because the analysis is performed to confirm an investigatory theory. When development of the technology allows it, mass scale DNA analysis should probably be found flatly unreasonable, as suspicion lacks and any warrant permitting it would be a general warrant to search the material sloughed off the body of any person that had been in the collection area.

Real cases should flesh out the rules, but DNA and the information it contains are naturally concealed. Whether seized, as in King , or collected without seizure, DNA analysis is a search that exposes a human’s molecular makeup.

Communications and Concealment

The special problem of communications is a little challenging to fit within the concealment-versus-exposure rubric, but careful analysis shows that it fits well. The Supreme Court has used concealment since early in our nation’s legal history to administer the Fourth Amendment’s application to communications. The constitutional protection of postal mail and its basis in concealment show how to administer constitutional protection of telephone and Internet communications today.

When establishing their “constitutional post,” America’s revolutionaries were acutely aware of the importance of postal privacy. Many of their communications, after all, had dealt with subject matter that the British Crown and Loyalists would have regarded as treasonous. [121] So it is not surprising that Congress’s first comprehensive postal statute in 1792 wrote the confidentiality of sealed correspondence into law, with heavy fines for opening or delaying mail. [122]

In 1878, Ex Parte Jackson [123] established the protected status of mail under the Fourth Amendment. The Court made an important distinction: it accorded constitutional protection to mailed content if senders had initially concealed the information in their mailed items. Protection did not obtain for unsealed mail like newspapers and pamphlets: “The constitutional guaranty of the right of the people to be secure in their papers against unreasonable searches and seizures extends to their papers, thus closed against inspection, wherever they may be.” [124] Letters and packages enclosing their contents in opaque materials had the same security as letters kept in the home. Mailed matter left open had no physical security and thus no constitutional security. The arrangement of postal mail to conceal gave its contents protection backed by the Fourth Amendment.

In Olmstead , the Court failed to adapt that rule to a new technology. Telephone communications are much like written letters, except that they reduce words to electric (today, digital) signals rather than printing on paper. Crucially, these signals pass along telephone lines invisibly and inaudibly to any human. They are concealed. Accessing them requires an invasion of the private property of the phone company and its customers, as well as a search of the electrical signal to draw its meaning out of concealment.

In Olmstead , Chief Justice William Howard Taft described how the government tapped the defendants’ phones: “Small wires were inserted along the ordinary telephone wires from the residences of four of the petitioners and those leading from the chief office” of the conspiracy. [125] These wires carried signals to a device the government controlled, which reproduced the sound of voices otherwise unheard all along the wire. Government agents took the conversations down to use as evidence. But later in his opinion, Taft ignored these facts, justifying his legal conclusions by saying: “There was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing, and that only.” [126] Chief Justice Taft was wrong. The wire and signals both were seized and the signals searched.

As Justice Butler pointed out in his dissent, “the exclusive use of the wire belong[ed] to the persons served by it.” [127] The government’s agents’ use of the wire invaded Olmstead’s right to exclude others. Collecting the signals, which “belong[ed] to the parties between whom they pass[ed],” [128] was a seizure of those signals. Converting the signals to the sounds they represented was a use of Olmstead’s property that government agents were not entitled to make, a further seizure. These efforts gave exposure to formerly concealed information, a search. All told, the government’s activity was a seizure-based search.

The Katz case, which reversed Olmstead , is the progenitor of “reasonable expectation of privacy” doctrine, but the majority ruling in Katz centered on concealment and exposure. While Justice Harlan opined about privacy expectations in his solo concurrence, Justice Potter Stewart’s majority opinion rested on the physical protection that Katz had given to his oral communications by going into a phone booth. Stewart’s preface is what people remember:

[T]he Fourth Amendment protects people, not places. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. [129]

The paragraphs that followed discussed the import of Katz going into a phone booth made of glass that concealed the sound of his voice. [130] Against the argument that Katz’s body was in public for all to see, the Court wrote: “[W]hat he sought to exclude when he entered the booth was not the intruding eye—it was the uninvited ear.” [131] The government’s use of a secreted listening and recording device to enhance ordinary perception overcame the physical concealment Katz had given to his voice. Gathering the sound waves seized something of Katz’s. Exposing the concealed conversation was a Fourth Amendment search.

As in Ex Parte Jackson , the rationale of the Katz majority was that people who generally conceal information on or about their persons, houses, papers, and effects have concealed it from the government. Other than in certain narrow cases, such as exigency, the government cannot overcome this concealment via seizure or search except after getting a warrant.

This rationale applies the same way to Internet communications, which operate similarly to mail and telephones. Rather than words or sounds converted to writing or analog electrical signals, Internet communications and data are converted into digital formats. As letters and telephone calls do in their media environments, Internet communications pass invisibly and inaudibly along privately owned and apportioned wires, switches, and fiber-optic cables. The communications are concealed from observation by physics and law. [132]

All this comports with common meanings of words, both today and at the time of the Framing. Black’s Law Dictionary says that “conceal” means “hide, secrete, or withhold from the knowledge of others . . . withhold from utterance or declaration . . . cover or keep from sight … hide or withdraw from observation, or prevent discovery of.” [133] Black’s defines the verb “to expose” as “[t]o show publicly; to display; to offer to the public view, as, to ‘expose’ goods to sale, to ‘expose’ a tariff or schedule of rates, to ‘expose’ misconduct of public or quasi-public figures.” [134] Webster’s 1828 dictionary defined “to expose” first as “[t]o lay open; to set to public view; to disclose; to uncover or draw from concealment; as, to expose the secret artifices of a court; to expose a plan or design.” [135]

Search sits between concealment and exposure: “‘Search’ consists of looking for or seeking out that which is otherwise concealed from view,” says Black’s . [136] In Kyllo , the Court said, “When the Fourth Amendment was adopted, as now, to ‘search’ meant ‘[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.’” [137] Communications and data, just like other things, can be seized, and they are searched when their contents are brought out of concealment into exposure.

Exposed Things Can Be Searched

In natural language, there can be examinations of already exposed things that rise to the level of “search”—“to search the wood for a thief,” for example. (Woods are not an object of the Fourth Amendment’s protections, of course, but that is relevant later in the analysis.) Efforts to expose concealed things are not the only signal of searching. Sensing with a “purpose of finding something” is the gravamen of “search.” It may not be signaled by the manufacture of physical exposure, instead coming down to government agents’ subjective purpose.

The use of certain devices or technologies to enhance perception of exposed things may signal when sensing activities cross over from casual looking to directed searching. Ordinary enhancements to sensing do not make for “search.” Wearing ordinary corrective lenses or hearing aids, for example, probably does not make looking or listening into searching. The Court has held that using a flashlight to illuminate an exposed area is not a “search.” [138]

But the use of highly powerful or exotic visual, audio, or other collection or analysis tools may exhibit that intensity or directedness that converts looking to searching. Recall that a factor in the Kyllo decision was the use of a device “not in general public use.” [139] The case is better administered using the generalization that bringing things out of concealment signals searching, but using a high-tech gizmo suggests directedness and intensity that pushes sensing over the line into searching.

One example of exotic technology used on exposed things is facial recognition. Our faces are exposed to the public every day, of course. Facial recognition can be done on photographs that were taken voluntarily or with the acquiescence of the subject, [140] so collecting the appearance of the face is typically not a seizure. There is no right to exclude others from such imagery per se. Gathering a facial image (in the visible spectrum) does not give exposure to concealed things, so collection of a facial image is not a search on that basis. That does not foreclose the question whether exposed facial images once collected might be searched.

Facial recognition systems work by converting the features of the face to a matrix of spatial relationships among its features, of colors, and textures. The distances between the eyes, width of the nose, color of the skin, and so on become elements in what is essentially a biometric signature. When the facial signature is collected, there may be no investigation underway, which may seem to imply that there is no Fourth Amendment search—just some inert administrative process. But the conversion of a face image to a facial recognition signature has only one purpose: to find something later.

Searching has two conceptual parts, which generally occur in a particular order. First, the specific thing to be searched for is identified. Next, the field in which it may be found is examined. Searching a forest, for instance, involves identifying the person, instrumentality, or evidence to be found, then marching through the area with eyes peeled for that thing. Facial recognition reverses these processes. It collects the material to be canvassed—facial signatures—then at any later time canvasses the earlier-collected facial signature data for a match. The fact that the steps in the process are reversed should not change the conclusion that facial recognition is a search technology and the use of it is a search. Conversion of a facial image to a facial signature that can be scanned for matches is a search of the face itself to render data that make the face amenable to being the object of a later search. It is enough of a step in the process of searching that it is best recognized as a search occurring at the time the processing is done. Facial recognition is an example of exposed things being searched because of the “purpose of finding something.” There is no other purpose to facial recognition technology.

The fact that facial scanning is a search should not bias the question whether or not it is reasonable. It would seem unreasonable to collect and scan facial images of everyone appearing in a given public place, because none of them are suspicious by dint merely of being there. It may be reasonable to run facial scans during the issuance of drivers’ licenses to thwart identity fraud, or it may not be. The mass of facial images collected for that purpose will be attractive for searching in pursuit of criminal suspects forever after the initial collection. Recurring searches of these facial signatures would wisely be regulated by the warrant requirement, though courts should determine this in actual cases.

The recent popularity of unmanned aerial flying vehicles, or drones, has raised the question of how their use by government agents might interact with the Fourth Amendment. Posit a fact situation analogous to Jones , but without attachment of a GPS device to a car. Rather, government agents sic a tiny cadre of drones to follow a car and note its whereabouts for weeks on end. Or imagine a drone flown above public property at an angle high enough to observe goings-on in a fenced backyard or through open windows. High-orbit, high-resolution cameras and monitoring software today allow extremely detailed observation and tracking of numerous people and things across vast expanses for long periods of time. In these cases, there may be no property invasion/seizure or exposure of concealed things to signal directedness and search. But the use of outré technologies and techniques may signal a “purpose of finding something” that is a search, even if the thing is unconcealed.

California v. Ciraolo , [141] decided in 1985, is one of very few Fourth Amendment cases where there is no invasion of a property right and arguably no exposure of a concealed thing to clearly signal the intensity of focus that makes for a “search.” In the case, Santa Clara police received an anonymous tip that marijuana was growing in Ciraolo’s backyard. [142] Unable to see over the high fences around the constitutionally protected “curtilage” of his home, [143] officers flew a private plane over it to confirm the presence of marijuana plants. [144] Based on the anonymous tip and their observations, they obtained a search warrant, searched the home, seized the plants, and charged Ciraolo.

The Supreme Court examined the directed aerial inspection under the “reasonable expectation of privacy” test. The high fences around the house did not necessarily manifest a subjective expectation of privacy, it turned out. Ciraolo had “merely a hope that no one would observe his gardening pursuits.” [145] As to the objective reasonableness of expecting privacy in one’s backyard, the Court noted that the officers were in public navigable airspace, the observations were non-intrusive, and the marijuana plants were easily discernable. Declining to say so explicitly, the Court concluded that this highly directed observation of Ciraolo’s yard was not a search. [146] In Florida v. Riley , [147] the Court extended this precedent to observations taken from a helicopter at 400 feet. [148]

Aerial observation from a high enough height does not invade any property right, so it is not a seizure, and, absent the use of outré technology, it does not bring exposure to otherwise concealed things. The clearest cues to “search” do not exist. Still, scrambling a plane, flying it over a particular house, and looking down at it in hopes of espying anticipated items seems to have a “purpose of finding something.” Testimony in such cases may reveal a non-search explanation for this behavior, but it probably is searching in the ordinary sense of the term. Ciraolo and Riley seem wrongly decided.

As a precedent for drone- and satellite-based observation, Ciraolo would ratify aerial observation of all people, houses, and things exposed to the sky without limit. This would undercut the Fourth Amendment’s grant of security to people in their persons, houses, papers, and effects whenever they were uncovered. In “reasonable expectation of privacy” cases like Ciraolo , courts can too easily reason backward from found drugs to lacking expectations of privacy.

Search, Seizure, and Privacy

Inquiring about privacy expectations, subjective or objective, is a poor way to administer the Fourth Amendment relative to the methodical, text-based analysis suggested here. But “privacy” has been discussed in the Court’s Fourth Amendment decisionmaking for decades. The relationship between privacy and concealment shows that shifting to sounder Fourth Amendment administration would not be a departure from precedent, and it would help achieve the Court’s aims with respect to the Fourth Amendment’s protections. The Supreme Court has recently stated as a goal that it will “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” [149]

Protecting privacy requires understanding what privacy is, as well as the role of concealment in protecting it. The strongest sense of the word “privacy,” and the one relevant to Fourth Amendment administration, is enjoyment of control over personal information. People maintain privacy by exercising control over personal information as they see fit.

In 1967, the year that the Supreme Court decided Katz , scholar Alan Westin characterized privacy in his seminal book, Privacy and Freedom , as “the claim of individuals, groups, or institutions to determine for themselves when, how, and to what extent information about them is communicated to others.” [150] A tighter, more legalistic definition of privacy is: “[T]he subjective condition that people experience when they have power to control information about themselves and when they exercise that power consistent with their interests and values.” [151] Given control over information about themselves, people will define and protect their privacy as they see fit.

Whether or not the Fourth Amendment requires it, giving individuals the same level of control over personal information today as they had at the time of the Framing is at least a meaningful and judicially administrable goal. One simply has to examine how people controlled information in the past and see that their ability to do so is maintained in the present.

In the late eighteenth century, people controlled information about themselves by arranging things in the world around them. Retreating into one’s home and drawing the blinds, for example, caused what happened inside to be private. Lowering one’s voice to a level others could not hear made a conversation private. Draping the body with clothing made the details of its shapes, textures, and colors private. These methods use the physical properties of things to block sound waves, photons, and similar phenomena.

A list of all privacy-protecting decisions and behaviors would be very long, and it would not be helpful for crafting lasting privacy-protecting rules. But abstracting the nature of privacy protection can: People protect privacy through concealment, literally by preventing others from perceiving things.

The concepts should be familiar by now: Perception of something comes from being able to collect its representation in physical media. Photons reaching eyeballs make a thing visible to a person. Sound waves reaching eardrums make a thing audible to a person. Particulates reaching a person’s nostrils or tongue make a thing perceptible by scent or taste. The surface of an object touched or pressed upon by skin can reveal its density, hardness, size, and weight. When a person’s brain collects these data, he or she perceives the things in the world. The observer draws inferences about things, and about the people who own and control them.

When photons, sounds waves, particulate remnants, and surfaces that reveal things are not available, such things are concealed, and the drawing of inferences about people is blocked. This, again, is how people protect privacy. They did it this way in the late-eighteenth century, and they do it this way today.

It is not enough, of course, for people to withdraw into their homes, lower their voices, or get dressed. When people enter their homes, they do so relying on the aggregate of rights that prevent others from entering or accessing their homes to discover what goes on within. They rely on property rights, as Danny Lee Kyllo did. When people put on clothes to prevent photons from revealing the appearance of sensitive areas, they do so relying on protection against wrongful physical contact that might strip the body of its wrappings. They rely on the law of battery, as Terry did in Ohio.

Sometimes people do rely almost entirely on physics to protect privacy, such as in Katz , by lowering and shrouding their voices in public places. And sometimes they rely heavily on law, such as when they share information with a fiduciary or service provider bound to confidentiality by contract or regulation. Most of the time, people protect privacy using natural laws and human laws together to conceal. [152]

When government agents seek to expose concealed things, threatening privacy or rendering it asunder, that is searching. But reasoning backward from privacy expectations is not a sound way to administer the Fourth Amendment. The question of privacy expectations produces maladministration of the Fourth Amendment. Courts are not at their strengths examining why people erect physical barriers, what they think about them, or what others should think of their thinking. The Supreme Court has not historically relied on privacy and privacy expectations. Most cases rely on concealment and exposure. The very decision that founded the sideways “reasonable expectation of privacy” doctrine itself, Katz v. United States , was a concealment/exposure case.

The Court uses the “reasonable expectation of privacy” test less and less often. Invited to reason forward systematically and sensibly, courts are well equipped to judge where various activities lie on the continuum from casual, non-search looking and sensing to directed, relatively intense “searching.” Courts can recognize “concealment” and “exposure.” They can apply the common meaning of the word “search” to familiar human activity. They can do these things better than they can determine what are “reasonable expectations of privacy.”

It is a low-consequence exercise, the “search” determination, because finding a “search” doesn’t end the inquiry. The constitutional import of a search or seizure turns on later questions such as whether the search was of a constitutionally protected item and whether or not the search was reasonable.

Some care is required to fastidiously identify seizures and searches, of course. The former is any invasion of a property right, and the latter is intense sensing, often signaled by effort to remove concealment from something and give it exposure. Or it is sensing so directed as to exhibit a “purpose of finding something.”

The house, the body, the gun, and the paper can be seized and searched. The wire, the communication, and the data can, too. They are all potential subjects of seizure and search regulated by the Fourth Amendment. If a seizure or search exists, though, this only raises the next question, which is whether the seizure or search was of someone’s person, his or her papers, house, or effects.

Was the seizure or search of a thing the Fourth Amendment protects?

When there has been a seizure or search, the next question is whether it was of a constitutionally protected item—a person, house, paper, or effect. Perhaps absorbed by confusing Fourth Amendment doctrine, the Supreme Court has rarely made explicit what the contours of these concepts are. But they are mostly familiar and commonsensical.

Terry and many similar cases assume that the human body and its appurtenances are the Fourth Amendment “person.” Taking possession of persons (to say nothing of using them) is a power the Fourth Amendment denies government agents in the absence of the requisite level of suspicion and typically a warrant.

Oliver v. United States [153] makes clear that the Fourth Amendment’s protection for houses does not bar government agents’ entry onto open fields, even when the owner has posted a “no trespassing” sign at the property line. [154] Nothing since the Fourth Amendment was adopted has made places far away from a house constitutionally a “house.” The dynamics of concealment, exposure, and security that existed when people departed their homes at the time of the Framing are the same today. Government agents who invade uninhabited private lands should be liable for trespass, perhaps, but they do not violate the Fourth Amendment.

Professor Andrew Guthrie Ferguson finds, though, that each of the items singled out for protection in the Fourth Amendment has been given “a more expansive reading than the pre-technological (pre-industrial) world of the Founders.” [155] An example is the development of “curtilage” doctrine.

The concept of “papers” requires updating in light of changed information and communication technologies. It was not papers as a form-factor for cellulose that the Framers sought to protect, but the common medium for storage and communication of information. [156]

The federal trial court system has recognized, as it must, that digital representations of information are equivalent to paper documents for purposes of both filing and discovery. [157] The subject matter held in digital documents and communications is at least as extensive and intimate as what was held on paper records at the Framing, and probably much more so. [158] The storage of documents on media other than paper changes nothing about their Fourth Amendment significance. The same information about each American’s life that once resided on paper and similar media in attics, garages, workshops, master bedrooms, sewing rooms, and desk drawers, [159] now resides, digitized, in cell phones and similar electronic devices.

Courts should explicitly recognize digital representations of information as constitutional “papers and effects” whose security against unreasonable seizure is protected by the Fourth Amendment. (To those for whom literalism is at a premium, the word “effects” has far less connotation of tangible objects than “papers,” and the two can be used interchangeably. [160] ) The coverage of the Fourth Amendment must extend to these media if the Court is to “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” [161]

At least one lower court has found constitutional protection for email clearly enough to rely on its premise that email represents a paper or effect. In United States v. Warshak , the U.S. Court of Appeals for the Sixth Circuit wrote: “Given the fundamental similarities between email and traditional forms of communications, it would defy common sense to afford emails lesser Fourth Amendment protection. Email is the technological scion of tangible mail.” [162]

Many cases explore the category of “effects,” though often tacitly. A car is an effect. [163] A cell phone is an effect. [164] So are containers [165] and packages, both when held by a person and entrusted to private carriers. [166]

The Court did not say so explicitly in Katz , but it treated the sound of Katz’s voice, suitably shrouded, as a constitutionally protected item. Not reduced to a tangible medium of expression, it is hard to treat it as a constitutional “paper.” But sound is a natural information conveyance equivalent to made items like paper and other tangible things. The best understanding of Katz consistent with the text of the Fourth Amendment is that a whisper or shrouded oral communication is an “effect” or what might be called “personal curtilage.” [167] When people’s digital items produce personal data, that data may be part of a “virtual curtilage.” [168]

The Fourth Amendment uses the possessive pronoun “their,” which places boundaries around the items in which a person may assert a right against unreasonable seizure or search. Resorting to “positive law” analysis solves most problems in this area. If police arriving at a doorway are rebuffed by a sole occupant with apparent authority to permit or deny ingress, the apartment is “his” or “hers,” as the case may be, and the police may not enter without permission or probable cause and a warrant. [169] A bailee’s car is “his” for Fourth Amendment purposes. [170]

Whatever the case, if a constitutionally protected item was searched or seized, the final question is whether that was reasonable. In “reasonable expectation of privacy” doctrine, the analysis is collapsed: A search is almost always unreasonable without a warrant. But the more methodical analysis allows for such a thing as a reasonable search or seizure.

Was the seizure or search reasonable?

When constitutionally protected items have been seized or searched, the Fourth Amendment calls for examining the reasonableness of government agents’ actions in doing so. This is where the judging should occur.

The question does not go to the reasonableness of privacy expectations, of course, but to the reasonableness of government agents’ actions. And it has less to do with the ordinary sensibilities of decent people, as modern usage would suggest. According to Professor Laura Donohue, the word “unreasonable” in antecedents to the Fourth Amendment and the amendment itself “conveyed a particular meaning: namely, against reason, or against the reason of the common law.” [171] “That which was consistent with the common law was reasonable and, therefore, legal. That which was inconsistent was unreasonable and, ipso facto, illegal.” [172]

The boundaries laid out by “positive law” are excellent guides to what is reasonable. [173] Common law, statutes, and regulations delimit what people can and cannot do in general—ordinary people and government agents alike. Searching or seizing that falls within these bounds would almost always be constitutionally reasonable. But a seizure or search that would be a civil or criminal wrong under ordinary circumstances must occur only after the second-thought and third-party review provided by the warrant application process. The Olmstead Court would have done well to heed the Washington state law that made it a misdemeanor to intercept messages sent by telegraph or telephone. [174]

To serve well, the reasonableness analysis must allow for reasonable seizure and reasonable search. Imagine a law enforcement officer walking down the street. She trips on a crack in the sidewalk and reaches out to steady herself on a nearby automobile, leaving a noticeable smudge. For an instant, she converted the car to her purposes, in a small but real seizure of another’s private property. [175]

An instinct in such a case may be to say, “that was no seizure.” But recall the government’s argument in Terry to exclude “stop and frisk” from Fourth Amendment examination, which the Court rejected. The better way to think of steadying oneself on a car is as an entirely reasonable seizure. It creates no action for trespass and it doesn’t violate any statute or regulation, nor does the practice in context invade the security of people’s cars. Were the officer to have converted the car to her purposes in a different way—attaching a GPS device to it, for example, so as to track its movements—this creepy behavior, recognized as illegal stalking in many states, [176] is not reasonable without a warrant supported by probable cause.

The same goes for reasonable searching. Say our law enforcement officer is at the beach. Espying odd behavior—maybe an incipient fist-fight—off in the direction of the wharf, she raises her binoculars to her eyes and looks at what is happening there. [177] That kind of directed looking may qualify as a search, but the existence of something “odd” and her use of a relatively ordinary technology place the search well within the bounds of reasonableness. In a second scenario, where a government agent sets up on a bluff and uses a military-grade instrument to read over a beachgoer’s shoulder, that seems to be unreasonable searching. It is an arguable invasion of the intrusion on seclusion branch of the common law privacy right.

Allowing for reasonable seizures and searches could invite all the outcome-determinativeness that people rightly deplore in “reasonable expectation” cases, but courts should be better able to resist outcome-determinacy using this analysis. “Reasonable expectation” doctrine asks if it was reasonable to expect privacy in the thing found. When the thing found is illegal drugs or guns, the answer is almost always “no.” But in this analysis, the focus is as it should be, on the actions of government agents. Courts will better analyze the abstract behavior without reference to what it turns up. They should be cautioned against reasoning backward, of course, and it will be fairly obvious when they do.

There is no replacing the need for judging in close Fourth Amendment cases. But examining the reasonableness of seizures and searches is the better way to administer the Fourth Amendment than the untethered guesstimation called for by the “reasonable expectation of privacy” test. Courts should use the ordinary meanings of the words in the Fourth Amendment and employ relatively familiar and settled property, contract, and tort concepts, as well as statute and regulation. They should strike balances based on the facts in individual cases rather than by making sweeping pronouncements about privacy.

To recap, the methodology required for sound administration of the Fourth Amendment asks:

A recent Tenth Circuit opinion written by Judge Neil Gorsuch exhibits how that methodology can sharpen a court’s reasoning.

United States v. Ackerman [178] dealt with the Fourth Amendment’s application to an email that AOL had forwarded to the National Center for Missing and Exploited Children’s (NCMEC) “CyberTipline” and opened by that group. Having found that NCMEC was a state actor, Judge Gorsuch began his consideration of the Fourth Amendment issues by applying key elements of its text: “No one in this appeal disputes that an email is a ‘paper’ or ‘effect’ for Fourth Amendment purposes . . . . The undisputed facts show, too, that NCMEC opened Mr. Ackerman’s email, found four attachments, and proceeded to view each of them. And that sort of rummaging through private papers or effects would seem pretty obviously a ‘search.’” [179]

In addition to a “reasonable expectations” analysis, Judge Gorsuch considered reasonableness in light of longstanding common law concepts. Opening and examining private correspondence “seems pretty clearly to qualify as exactly the type of trespass to chattels that the framers sought to prevent when they adopted the Fourth Amendment,” he wrote. “Of course, the framers were concerned with the protection of physical rather than virtual correspondence. But a more obvious analogy from principle to new technology is hard to imagine.” [180]

Opening an email is a search of it. An email is a “paper” or “effect.” Searching it without a warrant is unreasonable according to common law principles. Courts may benefit from this straightforward mode of Fourth Amendment reasoning for years to come.

In part, the failure of courts to administer the Fourth Amendment well can be laid at the door of the general legal environment, which does not yet comprehend communications and data very well. Our entry into the Information Age demands a new, higher respect for data, information, and communications as common law property. The Fourth Amendment and society generally will benefit from legal development in this area, which would parallel legal advances of the past.

In feudal times, prior to the development of trade and commerce, personal property was not well recognized by the law. It was treated something like communications and data are treated now. William Blackstone, writing in his famous Commentaries on the Laws of England , remarked that ordinary possessions were “not esteemed of so high a nature, nor paid so much regard to by the law, as things that are in their nature more permanent and immoveable, as lands, and houses, and the profits issuing thereout.” But when changes in technology and society allowed people to travel and engage in commerce with increasingly valuable movable goods, that necessitated expanded legal recognition for personalty “in a light nearly, if not quite, equal to” realty. [181]

Benjamin Constant described in his classic speech, The Liberty of the Ancients Compared with the Moderns , [182] how important rights in personal property were to the development of liberty. Feudal times allowed for hereditary rule and hereditary subservience because an owner of land could grant only the right to use property, or “usufruct,” to his subjects—not ownership. Property rights in movables emancipated the peon by allowing him to acquire wealth that was portable and, through wealth, a measure of independence. [183]

By the time of the American Founding, of course, “papers” and “effects” were well-established articles of property. They were used commonly enough and recognized as high-enough in value that the Framers of the Bill of Rights wrote their protection into the Fourth Amendment. The protection of these things as property helped form a nation conceived in liberty.

Today, we are seeing a rise of commerce in information and communications that parallels the growth of commerce in personalty hundreds of years ago. But the legal environment around information remains in a feudal era. Information goods have a low status, and the law is blasé about confiscation of communications and data in ways that are increasingly alarming to those who recognize the value of their data. With the growth of commerce in information, recognition of communications and information as a form of property would rebalance the relationship between the individual and the state.

Justice Butler laid the groundwork for establishing clearer Fourth Amendment rights with respect to information in his Olmstead dissent. Under contract with telephone companies, callers have the legal right to exclude others from their calls. The communications themselves belong to the parties between whom they pass.

When courts administer the Fourth Amendment, they should do so methodically, by examining whether there have been searches, which are invasions of any property right, and searches, which are signaled by bringing exposure to concealed things or acting with a “purpose of finding something.” If a seizure or search exists, the next step in the analysis is to determine whether it is of something that is protected by the Fourth Amendment: a person, house, paper, or effect. And if it is, the final question is whether the search or seizure was reasonable.

Crucially, this model puts courts in their familiar role of applying the law to the facts in cases that come before them. It does not require courts to make broad pronouncements about social mores, such as what are “reasonable expectations of privacy.” This way of administering the Fourth Amendment would focus the analysis in Fourth Amendment on the reasonableness of government action rather than the reasonableness of private defendants’ privacy preferences. And it would help the U.S. Supreme Court preserve the degree of privacy people enjoyed at the time of the Framing.

Modest Justice Pierce Butler is owed a revival, and perhaps a place in history next to Holmes, Cardozo, and Brandeis. He bequeathed us some very helpful ratio dissensi .

Jim Harper is vice president of the Competitive Enterprise Institute. Previously, Harper was a senior fellow at the Cato Institute. A former counsel to committees in both the U.S. House and the U.S. Senate, he went on to represent companies such as PayPal, ICO-Teledesic, DigitalGlobe, and Verisign, and in 2014 he served as Global Policy Counsel for the Bitcoin Foundation. ↑

Payne v. Tennessee , 501 U.S. 808, 827 (1991) (lauding stare decisis because it “promotes the evenhanded, predictable, and consistent development of legal principles, fosters reliance on judicial decisions, and contributes to the actual and perceived integrity of the judicial process.”). ↑

Note: Digital Duplications and the Fourth Amendment , 129 Harv. L. Rev. 1046 (2016) (“It goes without saying that the drafters of the Fourth Amendment did not contemplate its application to the digital era.”). ↑

See William G. Ross, The Hughes Court (1930-1941): Evolution and Revolution , in The United States Supreme Court: The Pursuit of Justice 246 (Christopher L. Tomlins ed., 2005). ↑

274 U.S. 200 (1927). ↑

Id . at 207. ↑

316 U.S. 535 (1942). ↑

302 U.S. 319 (1937). ↑

Benton v. Maryland , 395 U.S. 784 (1969). ↑

David R. Stras, Pierce Butler: A Supreme Technician , 62 Vand. L. Rev. 695 (March 2009). ↑

277 U.S. 438 (1928). ↑

Samuel Warren & Louis D. Brandeis, The Right to Privacy , 4 Harv. L. Rev. 193 (1890). ↑

Olmstead , 277 U.S. at 478 (Brandeis, J., dissenting). ↑

See, e.g. , M.G. Michael and Katina Michael, Privacy - “The Times They Are A-Changin,” IEEE Tech. and Soc’y Mag. 31.4 (2012): 20-21; J. Lyn Entrikin, The Right to be Let Alone: The Kansas Right of Privacy , UALR Bowen School Research Paper No. 12-05 (Feb. 19, 2013); Justin Conforti, Somebody’s Watching Me: Workplace Privacy Interests, Technology Surveillance, And The Ninth Circuit’s Misapplication Of The Ortega Test In Quon v. Arch Wireless, 5 Seton Hall Cir. Rev. 7 (2012); Stephanie A. Kuhlmann, Do Not Track Me Online: The Logistical Struggles over the Right to Be Let Alone Online , 22 DePaul J. Art Tech. & Intell. Prop. L. 229 (2011-2012). ↑

Olmstead , 277 U.S. at 474 (Brandeis, J., dissenting). ↑

389 U.S. 347 (1967). ↑

Id . at 361. ↑

On the warrant requirement, the Court has said, “It is a cardinal rule that . . . law enforcement . . . use search warrants wherever reasonably practicable.” Chimel v. California , 395 U.S. 752, 758 (1969) (quoting Trupiano v. United States , 334 U.S. 699, 705 (1948)). ↑

See Orin Kerr, Katz Has Only One Step: The Irrelevance of Subjective Expectations , 82 U. Chi. L. Rev. 113 (2015). ↑

442 U.S. 735 (1979). ↑

See id. at 736 n.1 (explaining that a pen register records the telephone numbers one dials but does not transmit conversation). ↑

Id . at 736. ↑

See id. ↑

Id . at 743. ↑

468 U.S. 705 (1984). ↑

Id . at 708-709. ↑

Id . at 713. ↑

Illinois v. Caballes , 543 U.S. 405 (2005). ↑

Olmstead , 277 U.S. at 487 (Butler, J., dissenting). ↑

See Susan W. Brenner & Barbara A. Frederikson, Computer Searches and Seizures: Some Unresolved Issues , 8 Mich. Telecomm. & Tech. L. Rev. 39, 111 (2002) (“Information contained in computer files clearly belongs to the owner of the files. The ownership of information is similar to the contents of private conversation in which the information belongs to the parties to the conversation.”). ↑

Kyllo v. United States , 533 U.S. 27, 34 (2001); United States v. Jones , 565 U.S. ___, 950 (2011); Id . at 958 (Alito J., concurring in the judgment). ↑

U.S. Const. amend. IV. There is a second phase to the Fourth Amendment, of course. We focus here on the existence of searching and seizing and their reasonableness when they exist, putting aside questions around the warrant requirement. ↑

See infra , notes 44-51. ↑

134 S. Ct. 2473 (2014). ↑

Brendlin v. California , 551 U.S. 249, 254-263 (2007). ↑

Terry v. Ohio , 392 U.S. 1, 20-27 (1968). ↑

428 U.S. 364, 376 (1976). ↑

395 U.S. 752, 762-763 (1969). ↑

See, e.g ., Illinois v. Lafayette , 462 U.S. 640 (1983). ↑

People v. Riley , 2013 Cal. App. Unpub., LEXIS 1033 at 8 (Cal. 2013). ↑

Detective Malinowski’s seizure of data in downloading it from the cell phone was an additional step in the process of investigating Riley, which Riley did not contest articulately. The legal authority to seize data would spring from discovery of it as evidence during a lawful search of the cell phone. ↑

United States v. Jacobsen , 466 U.S. 109, 114 n.5 (1984) (“[T]he concept of a ‘seizure’ of property is not much discussed in our cases.”) ↑

Bright minds will question this broad statement, pointing to the Fifth Amendment’s Takings Clause as the rule that generally controls and administers government property invasions. That provision is used more often to challenge civil seizures, and the Fourth Amendment criminal ones, but the two overlap. See Severance v. Patterson , 566 F. 3d 490, 501 (5th Cir. 2009); Presley v. City of Charlottesville , 464 F. 3d 480, 487 (4th Cir. 2006). ↑

392 U.S. 1, 6 (1968). ↑

Id . at 6. ↑

Id. at 7. ↑

Id . at 16 fn. 12. ↑

Id. at 19. ↑

Id . ↑

Id . at 35 (Douglas, J., dissenting). ↑

132 S. Ct. 945 (2012). ↑

Id . at 949. ↑

See ACLU v. Clapper, ___ F._d ___ (2nd Cir. 2015) (referring to attachment of the GPS device in Jones as “a technical trespass on the defendant’s vehicle.”) ↑

480 U.S. 321 (1987). ↑

506 U.S. 56 (1992). ↑

Id . at 68. ↑

533 U.S. 27 (2001). ↑

Id . at 32. ↑

“[E]very invasion of private property, be it ever so minute, is a trespass,” said Charles Pratt, Chief Justice of the Court of Common Pleas in 1765’s Entick v. Carrington . 19 Howell’s St Trials 1029, 1066 (CP 1765). “It is not so much the breaking of his door nor the rummaging of his drawers that constitutes the essence of the offense, but it is the invasion of his indefeasible rights of personal liberty.” Id. ↑

See Laurent Sacharoff, Constitutional Trespass , 81 Tenn. L. Rev. 877 (2014). The Court has been consistently unclear about what it is doing when it administers the seizure concept—sometimes suggesting an overlap between common law trespass and seizure. The confusion is aided by scholarship that conflates property, the right, with trespass, the cause of action. See Orin S. Kerr, The Curious History of Fourth Amendment Seizures , 1 Sup. Ct. Rev. 67 (2012). This may suggest to some that property has no place in administering a right that makes direct reference to four categories of property. ↑

Legal philosopher Tony Honoré best articulates the bundle of sticks concept. His 1961 essay, “Ownership,” described the incidents of ownership common to “mature legal systems.” Tony Honoré, Oxford Essays on Jurisprudence 104-147 (A.G. Guest ed., 1961), republished in Tony Honoré, Making Law Bind: Essays Legal and Philosophical 161, 162 (1987). “Ownership comprises the right to possess, the right to use, the right to manage, the right to the income of the thing, the right to the capital, the right to security, the rights or incidents of transmissibility and absence of term, the duty to prevent harm, liability to execution, and the incident of residuarity.” Id . at 165. ↑

2 William Blackstone, Commentaries 2. ↑

458 U.S. 419, 435 (1982). ↑

444 U.S. 164, 176 (1979) ↑

462 U.S. 696 (1983). ↑

Id . at 705. ↑

466 U.S. 109 (1984). ↑

Id . at 113. ↑

Id . at 712. ↑

480 U.S. 321, 324 (1987) (citing Maryland v. Macon , 472 U.S. 463, 469 (1985)). ↑

Id . at 729. ↑

496 U.S. 128 (1990). ↑

Id . at 133. ↑

See Mathis v. City of Lyon , 633 F.3d 877 (9th Cir. 2011) (addressing seizure of future interest in personal property). ↑

134 S. Ct. at 2480. ↑

Id . at ___; 134 S. Ct. at 2495. ↑

Jones repudiates the Seventh Circuit’s decision five years earlier in United States v. Garcia , 474 F.3d 994 (2007). In that case, Judge Posner called “untenable” the contention that attaching a tracking device to a car is a seizure. Id . at 996. ↑

Someone who knows a recipe for cookies, for example, has the right to use it to make those cookies, also enjoying the right to income from the recipe. Excluding others from information is a right that can be very valuable, such as the recipe for Coca-Cola. Knowing another’s secrets is an enjoyable exercise of the right to possess information—either because it nurtures an intimate relationship or because it puts a person one-up on another. Secret-keeping and some forms of dishonesty are appropriate exercises of the right to exclude others from information, with valuable social and interpersonal purposes. See United States v. Alvarez, __ F.3d __, 2001 WL 941617 (9th Cir. Mar. 21, 2011) (ord. denying reh’g en banc) (Kozinski, C.J., concurring in denial of reh’g en banc) (“Saints may always tell the truth, but for mortals living means lying.” E.g.: “We lie to protect our privacy (“No, I don’t live around here”); to avoid hurt feelings (“Friday is my study night”); to make others feel better (“Gee you’ve gotten skinny”); to avoid recriminations (“I only lost $10 at poker”); to prevent grief (“The doc says you’re getting better”); to maintain domestic tranquility (“She’s just a friend”). . . or to maintain innocence (“There are eight tiny reindeer on the rooftop”).”) ↑

See Mark Taticchi, Note: Redefining Possessory Interests: Perfect Copies of Information as Fourth Amendment Seizures , 78 Geo. Wash. L. Rev. 476, 491-96 (2010). ↑

See Scott R. Peppet, Regulating the Internet of Things: First Steps Toward Managing Discrimination, Privacy, Security, and Consent , 93 Tex. L. Rev. 85, 142-45 (2014). ↑

Full Privacy Policy , Verizon, http://www22.verizon.com/about/privacy/policy/ . ↑

Anne Wells Branscomb, Who Owns Information? (1994). ↑

Though lawyers are trained to think of it in terms of professional ethics, the attorney’s duty of confidentiality to clients is based in contract. The Hippocratic Oath is the ethical expression of a contractual duty on health care providers, as the Supreme Court of New York has found, relying on contract liability when addressing unauthorized disclosure of confidential psychological information. Hammonds v. Aetna Casualty & Surety is a leading case in the area of unauthorized disclosure of medical information. 243 F.Supp. 793 (N.D. Ohio 1965). (“Any time a doctor undertakes the treatment of a patient, . . . (d)octor and patient enter into a simple contract. As an implied condition of that contract, this Court is of the opinion that the doctor warrants that any confidential information gained through the relationship will not be released without the patient's permission.”). ↑

See Jim Harper, Understanding Privacy—and the Real Threats to It , Cato Inst. Pol’y Anal. No. 520, 14-15 (Aug. 4, 2004). ↑

Before the Bank Secrecy Act undercut common law development of information terms in financial services contracts, courts recognized an implied contractual duty not to disclose information about depositors’ accounts. See, e.g ., Peterson v. Idaho First National Bank , 83 Idaho 578, 367 P.2d 284 (1961) (finding that a bank had an implied duty not to disclose any information concerning a depositor’s account to third persons unless authorized by law or by the depositor). The Supreme Court did not address the conflict with bank customers’ contractual rights when it ratified the Bank Secrecy Act as against constitutional challenges in California Bankers and Miller . ↑

See Carpenter v. United States , 484 U.S. 19, 25 (1987); United States v. Seidlitz , 589 F. 2d 152, 160 (4th Cir. 1978). ↑

See Ingrid Burrington, What People Mean When They Talk About “The Cloud ,” The Atlantic (Nov. 4, 2015), http://www.theatlantic.com/technology/archive/2015/11/what-people-mean-when-they-talk-about-the-cloud/413758/ . ↑

See Susan E. Gindin, Nobody Reads Your Privacy Policy or Online Contract? Lessons Learned and Questions Raised by the FTC's Action Against Sears , 8 Nw. J. Tech. & Intell. Prop.1 (2009). ↑

See, e.g., Calif. Veh. Code § 9951. ↑

Pub. L. 104-104 (Feb. 8, 1996). ↑

47 U.S.C. §222(a). The statute defines “Customer Proprietary Network Information” (“CPNI”), as “information that relates to the quantity, technical configuration, type, destination, and amount of use of a telecommunications service subscribed to by any customer of a telecommunications carrier, and that is made available to the carrier by the customer solely by virtue of the carrier-customer relationship; and…information contained in the bills pertaining to telephone exchange service or telephone toll service received by a customer.” 47 U.S.C. §222(f)(1). ↑

47 U.S.C. §222(c)(2). ↑

47 U.S.C. §222(c)(1), ↑

The relationship of trespass to the Fourth Amendment was much discussed in Jones , 132 S. Ct. 945. ↑

Tennessee v. Garner , 471 U.S. 1, 7 (1985) (“Whenever an officer restrains the freedom of a person to walk away, he has seized that person.”). ↑

See John Locke, Second Treatise of Government § 27 (“every Man has a Property in his own Person”); The Papers of James Madison, Property, 14:266-68 (“[A man] has a property very dear to him in the safety and liberty of his person.”). ↑

See infra , notes 134-35. ↑

475 U.S. 106 (1981). ↑

Id . at 108. ↑

Id . at 111-14. ↑

A better way to reach the same result would have been for the Court to recognize the search, but find it reasonable for many of the same reasons around motor vehicle administration the Court found it not a search. That result seems unlikely, though, because Officers Meyer and McNamee had no suspicion of crime for which the VIN was relevant. Id. at 108. ↑

Id . at 29. ↑

Doing either would have violated his property right to exclude others. ↑

Orin S. Kerr, Searches and Seizures in a Digital World , 119 Harv. L. Rev. 531, 553 (“For the holding in Kyllo to make sense, it must be the transformation of the existing signal into a form that communicates information to a person that constitutes the search. What made the conduct in Kyllo a search was not the existence of the radiation signal in the air, but the output of the thermal image machine and what it exposed to human observation.”). ↑

Id . at 40. ↑

Katz , 389 U.S. at 351. ↑

Orin S. Kerr, Searches and Seizures in a Digital World , 119 Harv. L. Rev. 531, 551 (“a search occurs when information from or about the data is exposed to possible human observation”). ↑

133 S. Ct. 1409, 1416 (2013). ↑

Id . at 1417. ↑

575 U.S. ___ (2015). ↑

543 U.S. 405 (2005). ↑

But see Jardines , 133 S. Ct. at 1418 (Kagan, J., concurring) (“[A] drug-detection dog is a specialized device for discovering objects not in plain view (or plain smell).”). ↑

133 S. Ct. 1958, 1969 (2013). ↑

See Elizabeth E. Joh, Reclaiming “Abandoned” DNA: The Fourth Amendment and Genetic Privacy , 100 Nw. U. L. Rev. 857 (2006). ↑

See Anuj C. Desai, Wiretapping Before the Wires: The Post Office and the Birth of Communications Privacy , 60 Stan. L. Rev. 564, 563–64 (2007). ↑

Id . at 566-57. In relevant part, the 1792 law says: ‘‘If any person, employed in any of the departments of the general post-office, shall unlawfully detain, delay, or open, any letter, packet, bag or mail of letters, with which he shall be entrusted, or which shall have come to his possession, and which are intended to be conveyed by post . . . , every such offender, being thereof duly convicted, shall, for every such offence, be fined not exceeding three hundred dollars, or imprisoned not exceeding six months, or both, according to the circumstances and aggravations of the offence.’’ Act of Feb. 20, 1792, § 16, 1 Stat. 232, 236. ↑

96 U.S. 727 (1878). ↑

Jackson , 96 U.S. at 733. ↑

Olmstead , 277 U.S. at 457. ↑

Id . at 464. ↑

Id . at 487 (Butler, J., dissenting). ↑

Katz , 389 U.S. at 351 (citations omitted). ↑

Id . at 352. ↑

See Jim Harper, Escaping Fourth Amendment Doctrine After Jones : Physics, Law, and Privacy Protection, Cato Sup. Ct. Rev. 219 (2011-2012). ↑

Black’s Law Dictionary 288. ↑

Id . at 579. ↑

N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989). ↑

Black’s Law Dictionary 1349. ↑

N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989) (quoted in Kyllo , 533 U.S. at 32 n.1). ↑

In United States v. Lee , 274 U.S. 559 (1927), for example, government agents on a Coast Guard ship used a searchlight to apprehend cases of liquor onboard a boat during Prohibition. Id . at 561. This common enhancement to sensing Justice Brandeis deemed “no search.” Id . at 563. More recently, in Texas v. Brown , 460 U.S. 730 (1983), the Court held that shining a flashlight into a stopped car did not violate the Constitution because “the use of artificial means to illuminate a darkened area simply does not constitute a search.” Id . at 740. ↑

Kyllo , 533 U.S. at 40. ↑

Conditioning a driver’s license on “facial image capture”, REAL ID Act of 2005 § 202(d)(3), is an arguable seizure. ↑

476 U.S. 207 (1986). ↑

Id . at 209. ↑

Id . at 212. ↑

Id . at 213-214. ↑

488 U.S. 445 (1989). ↑

Id . at 450-51. ↑

Kyllo v. United States , 533 U.S. 27, 34; Jones , 565 U.S. at 950; Id . at 958 (Alito, J., concurring). ↑

Alan Westin, Privacy and Freedom 7 (1967). ↑

Harper, Understanding Privacy, supra note 88. ↑

Harper, supra note 132. ↑

466 U.S. 170 (1984). ↑

Id . at 176-77. The trial court’s ruling in that case shows how “reasonable expectation of privacy” doctrine pulls courts away from the text of the Fourth Amendment. Applying the doctrine, it found that Oliver had a reasonable expectation that a field a mile from his home would remain private because he “had done all that could be expected of him to assert his privacy in the area of farm that was searched.” Id . at 173. ↑

Andrew Guthrie Ferguson, The Internet of Things and the Fourth Amendment of Effects , 104 Cal. L. Rev. 805, 854 (2016). ↑

See United States v. Seljan , 547 F.3d 993, 1014-17 (9th Cir. 2008) (Kozinski, J., dissenting), cert. denied , 129 S. Ct. 1368 (2009) (“What makes papers special—and the reason why they are listed alongside houses, persons and effects—is the ideas they embody, ideas that can only be seized by reading the words on the page.”). ↑

See Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, Report of the Civil Rules Advisory Committee 2, 18-22 (May 27, 2005), http://www.uscourts.gov/uscourts/RulesAndPolicies/rules/Reports/CV5-2005.pdf . ↑

See , Mary Czerwinski et al., Digital Memories in an Era of Ubiquitous Computing and Abundant Storage, Communications of the ACM , at 45 (Jan. 2006), http://research.microsoft.com/pubs/79673/CACMJan2006DigitalMemories.pdf . ↑

Cf . Chimel , 395 U.S. at 754. ↑

During the framing of the Fourth Amendment, the Committee of Eleven changed Madison’s language protecting “persons, houses, papers, and other property,” to “persons, houses, papers, and effects,” arguably broadening the scope of the items protected. Laura K. Donohue, The Original Fourth Amendment , 83 U. Chi. L. Rev. 1181, 1301 (2016). ↑

Kyllo , 533 U.S. at 34. ↑

631 F.3d 266, 285-86 (6th Cir. 2010). ↑

Jones , 132 S. Ct. at 953; Cady v. Dombrowski, 413 U.S. 433, 439 (1973); Brinegar v. United States , 338 U.S. 160, 182 (1949). ↑

Riley , 134 S. Ct. at 2485. ↑

Florida v. Jimeno , 500 U.S. 248 (1980). ↑

Walter v. United States , 447 U.S. 649, 654 (1980), Ex Parte Jackson , 96 U.S. 727, 733 (1877); United States v. Jacobsen , 466 U.S. 109, 114 (1984). ↑

Andrew Guthrie Ferguson, Personal Curtilage: Fourth Amendment Security in Public , 55 Wm. & Mary L. Rev. 1283 (2014). ↑

See Ferguson, supra note 155. ↑

See United States v. Matlock , 415 U.S. 164 (1974). ↑

Jones , 132 S. Ct. at 949 n. 2. ↑

Donohue, supra note 160, at 1270. ↑

Id . at 1270-71. ↑

See William Baude & James Stern, The Positive Law Model of the Fourth Amendment , 129 Harv. L. Rev. 1821 (2016). Baude and Stern treat “positive law” as defining the contours of search, but it may better delimit reasonableness. But see Kiel Brennan-Marquez and Andrew Tutt, Offensive Searches , ___ Har . Civ. Rights-Civ. Liberties L. Rev. ___, ___ (forthcoming) (arguing that the Court has repeatedly rejected positive law). ↑

Remington Compiled Stat., § 2656-18 (1922); see Olmstead , 277 U.S. at 480 (Brandeis, J., dissenting). ↑

The question whether a seizure occurred is objective and has no relation to the intention of the actor. ↑

See Ashley N. B. Beagle, Modern Stalking Laws: A Survey of State Anti-Stalking Statutes Considering Modern Mediums and Constitutional Challenges , 14 Chap. L. Rev. 457 (Winter 2011). ↑

In contrast to seizure, searching is subjective. It turns on the actor’s purpose of finding something. ↑

831 F.3d 1292 (10th Cir. 2016). ↑

Id . at 1304 (citations omitted). ↑

Id . at 1307-08 (citations omitted). ↑

2 William Blackstone, Commentaries ch. 24. See also Eric Jones, The European Miracle (3d. ed. 2003) (examining theories that might explain how personal property rights took hold). ↑

Benjamin Constant, The Liberty of the Ancients Compared with the Moderns, in Constant: Political Writings 307 (Biancamaria Fontana ed., 2010). ↑

“Commerce confers a new quality on property, circulation. Without circulation, property is merely a usufruct; political authority can always affect usufruct, because it can prevent its enjoyment; but circulation creates an invisible and invincible obstacle to the actions of social power.” Id. at 324-25. ↑

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Maryland v. king.

Supreme Court

MARYLAND v. KING 425 Md. 550, 42 A. 3d 549, reversed.

Syllabus [Syllabus] [PDF]
Opinion , Kennedy [Kennedy Opinion] [PDF]
Dissent , Scalia [Scalia Dissent] [PDF]

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co., 200 U. S. 321 , 337.

SUPREME COURT OF THE UNITED STATES

MARYLAND v . KING

certiorari to the court of appeals of maryland

After his 2009 arrest on first- and second-degree assault charges, respondent King was processed through a Wicomico County, Maryland, facility, where booking personnel used a cheek swab to take a DNA sample pursuant to the Maryland DNA Collection Act (Act). The swab was matched to an unsolved 2003 rape, and King was charged with that crime. He moved to suppress the DNA match, arguing that the Act violated the Fourth Amendment , but the Circuit Court Judge found the law constitutional. King was convicted of rape. The Maryland Court of Appeals set aside the conviction, finding unconstitutional the portions of the Act authorizing DNA collection from felony arrestees.

Held : When officers make an arrest supported by probable cause to hold for a serious offense and bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment . Pp. 3–28.

(a) DNA testing may “significantly improve both the criminal justice system and police investigative practices,” District Attorney’s Office for Third Judicial Dist. v. Osborne , 557 U. S. 52 , 55, by making it “possible to determine whether a biological tissue matches a suspect with near certainty,” id., at 62. Maryland’s Act authorizes law enforcement authorities to collect DNA samples from, as relevant here, persons charged with violent crimes, including first-degree assault. A sample may not be added to a database before an individual is arraigned, and it must be destroyed if, e.g., he is not convicted. Only identity information may be added to the database. Here, the officer collected a DNA sample using the common “buccal swab” procedure, which is quick and painless, requires no “surgical intrusio[n] beneath the skin,” Winston v. Lee , 470 U. S. 753 , 760, and poses no threat to the arrestee’s “health or safety,” id., at 763. Respondent’s identification as the rapist resulted in part through the operation of the Combined DNA Index System (CODIS), which connects DNA laboratories at the local, state, and national level, and which standardizes the points of comparison, i.e., loci, used in DNA analysis. Pp. 3–7.

(b) The framework for deciding the issue presented is well established. Using a buccal swab inside a person’s cheek to obtain a DNA sample is a search under the Fourth Amendment . And the fact that the intrusion is negligible is of central relevance to determining whether the search is reasonable, “the ultimate measure of the constitutionality of a governmental search,” Vernonia School Dist. 47J v. Acton , 515 U. S. 646 , 652. Because the need for a warrant is greatly diminished here, where the arrestee was already in valid police custody for a serious offense supported by probable cause, the search is analyzed by reference to “reasonableness, not individualized suspicion,” Samson v. California , 547 U. S. 843 , 855, n. 4, and reasonableness is determined by weighing “the promotion of legitimate governmental interests” against “the degree to which [the search] intrudes upon an individual’s privacy,” Wyoming v. Houghton , 526 U. S. 295 , 300. Pp. 7–10.

(c) In this balance of reasonableness, great weight is given to both the significant government interest at stake in the identification of arrestees and DNA identification’s unmatched potential to serve that interest. Pp. 10–23.

(1) The Act serves a well-established, legitimate government interest: the need of law enforcement officers in a safe and accurate way to process and identify persons and possessions taken into custody. “[P]robable cause provides legal justification for arresting a [suspect], and for a brief period of detention to take the administrative steps incident to arrest,” Gerstein v. Pugh , 420 U. S. 103 , 113–114; and the “validity of the search of a person incident to a lawful arrest” is settled, United States v. Robinson , 414 U. S. 218 , 224. Individual suspicion is not necessary. The “routine administrative procedure[s] at a police station house incident to booking and jailing the suspect” have different origins and different constitutional justifications than, say, the search of a place not incident to arrest, Illinois v. Lafayette , 462 U. S. 640 , 643, which depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates , 462 U. S. 213 , 238. And when probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests. First, the government has an interest in properly identifying “who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty ., 542 U. S. 177 , 191. Criminal history is critical to officers who are processing a suspect for detention. They already seek identity information through routine and accepted means: comparing booking photographs to sketch artists’ depictions, showing mugshots to potential witnesses, and comparing fingerprints against electronic databases of known criminals and unsolved crimes. The only difference between DNA analysis and fingerprint databases is the unparalleled accuracy DNA provides. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. Second, officers must ensure that the custody of an arrestee does not create inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” Florence v. Board of Chosen Freeholders of County of Burlington , 566 U. S. ___, ___. DNA allows officers to know the type of person being detained. Third, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Bell v. Wolfish , 441 U. S. 520 , 534. An arrestee may be more inclined to flee if he thinks that continued contact with the criminal justice system may expose another serious offense. Fourth, an arrestee’s past conduct is essential to assessing the danger he poses to the public, which will inform a court’s bail determination. Knowing that the defendant is wanted for a previous violent crime based on DNA identification may be especially probative in this regard. Finally, in the interests of justice, identifying an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned. Pp. 10–18.

(2) DNA identification is an important advance in the techniques long used by law enforcement to serve legitimate police concerns. Police routinely have used scientific advancements as standard procedures for identifying arrestees. Fingerprinting, perhaps the most direct historical analogue to DNA technology, has, from its advent, been viewed as a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin , 500 U. S. 44 , 58. However, DNA identification is far superior. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, and DNA identification is markedly more accurate. It may not be as fast as fingerprinting, but rapid fingerprint analysis is itself of recent vintage, and the question of how long it takes to process identifying information goes to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Rapid technical advances are also reducing DNA processing times. Pp. 18–23.

(d) The government interest is not outweighed by respondent’s privacy interests. Pp. 23–28.

(1) By comparison to the substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is minimal. Reasonableness must be considered in the context of an individual’s legitimate privacy expectations, which necessarily diminish when he is taken into police custody. Bell, supra, at 557. Such searches thus differ from the so-called special needs searches of, e.g., otherwise law-abiding motorists at checkpoints. See Indianapolis v. Edmond , 531 U. S. 32 . The reasonableness inquiry considers two other circumstances in which particularized suspicion is not categorically required: “diminished expectations of privacy [and a] minimal intrusion.” Illinois v. McArthur , 531 U. S. 326 , 330. An invasive surgery may raise privacy concerns weighty enough for the search to require a warrant, notwithstanding the arrestee’s diminished privacy expectations, but a buccal swab, which involves a brief and minimal intrusion with “virtually no risk, trauma, or pain,” Schmerber v. California , 384 U. S. 757 , 771, does not increase the indignity already attendant to normal incidents of arrest. Pp. 23–26.

(2) The processing of respondent’s DNA sample’s CODIS loci also did not intrude on his privacy in a way that would make his DNA identification unconstitutional. Those loci came from noncoding DNA parts that do not reveal an arrestee’s genetic traits and are unlikely to reveal any private medical information. Even if they could provide such information, they are not in fact tested for that end. Finally, the Act provides statutory protections to guard against such invasions of privacy. Pp. 26–28.

425 Md. 550, 42 A. 3d 549, reversed.

Kennedy, J., delivered the opinion of the Court, in which Roberts, C. J., and Thomas, Breyer, and Alito, JJ., joined. Scalia, J., filed a dissenting opinion, in which Ginsburg, Sotomayor, and Kagan, JJ., joined.

NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

_________________

MARYLAND, PETITIONER v. ALONZO JAY KING, J r .

on writ of certiorari to the court of appeals of maryland

Justice Kennedy delivered the opinion of the Court.

In 2003 a man concealing his face and armed with a gun broke into a woman’s home in Salisbury, Maryland. He raped her. The police were unable to identify or apprehend the assailant based on any detailed description or other evidence they then had, but they did obtain from the victim a sample of the perpetrator’s DNA.

In 2009 Alonzo King was arrested in Wicomico County, Maryland, and charged with first- and second-degree assault for menacing a group of people with a shotgun. As part of a routine booking procedure for serious offenses, his DNA sample was taken by applying a cotton swab or filter paper—known as a buccal swab—to the inside of his cheeks. The DNA was found to match the DNA taken from the Salisbury rape victim. King was tried and convicted for the rape. Additional DNA samples were taken from him and used in the rape trial, but there seems to be no doubt that it was the DNA from the cheek sample taken at the time he was booked in 2009 that led to his first having been linked to the rape and charged with its commission.

The Court of Appeals of Maryland, on review of King’s rape conviction, ruled that the DNA taken when King was booked for the 2009 charge was an unlawful seizure because obtaining and using the cheek swab was an unreasonable search of the person. It set the rape conviction aside. This Court granted certiorari and now reverses the judgment of the Maryland court.

When King was arrested on April 10, 2009, for menac-ing a group of people with a shotgun and charged in state court with both first- and second-degree assault, he was processed for detention in custody at the Wicomico County Central Booking facility. Booking personnel used a cheek swab to take the DNA sample from him pursuant to provisions of the Maryland DNA Collection Act (or Act).

On July 13, 2009, King’s DNA record was uploaded to the Maryland DNA database, and three weeks later, on August 4, 2009, his DNA profile was matched to the DNA sample collected in the unsolved 2003 rape case. Once the DNA was matched to King, detectives presented the forensic evidence to a grand jury, which indicted him for the rape. Detectives obtained a search warrant and took a second sample of DNA from King, which again matched the evidence from the rape. He moved to suppress the DNA match on the grounds that Maryland’s DNA collection law violated the Fourth Amendment . The Circuit Court Judge upheld the statute as constitutional. King pleaded not guilty to the rape charges but was convicted and sentenced to life in prison without the possibility of parole.

In a divided opinion, the Maryland Court of Appeals struck down the portions of the Act authorizing collection of DNA from felony arrestees as unconstitutional. The majority concluded that a DNA swab was an unreasonable search in violation of the Fourth Amendment because King’s “expectation of privacy is greater than the State’s purported interest in using King’s DNA to identify him.” 425 Md. 550, 561, 42 A. 3d 549, 556 (2012). In reach- ing that conclusion the Maryland Court relied on the deci-sions of various other courts that have concluded that DNA identification of arrestees is impermissible. See, e.g., People v. Buza , 129 Cal. Rptr. 3d 753 (App. 2011) (offi-cially depublished); Mario W. v. Kaipio , 228 Ariz. 207, 265 P. 3d 389 (App. 2011).

Both federal and state courts have reached differing conclusions as to whether the Fourth Amendment prohibits the collection and analysis of a DNA sample from persons arrested, but not yet convicted, on felony charges. This Court granted certiorari, 568 U. S. ___ (2012), to address the question. King is the respondent here.

The advent of DNA technology is one of the most significant scientific advancements of our era. The full potential for use of genetic markers in medicine and science is still being explored, but the utility of DNA identification in the criminal justice system is already undisputed. Since the first use of forensic DNA analysis to catch a rapist and murderer in England in 1986, see J. Butler, Fundamentals of Forensic DNA Typing 5 (2009) (hereinafter Butler), law enforcement, the defense bar, and the courts have acknowledged DNA testing’s “unparalleled ability both to exonerate the wrongly convicted and to identify the guilty. It has the potential to significantly improve both the criminal justice system and police investigative practices.” District Attorney’s Office for Third Judicial Dist. v. Osborne , 557 U. S. 52 , 55 (2009).

The current standard for forensic DNA testing relies on an analysis of the chromosomes located within the nucleus of all human cells. “The DNA material in chromosomes is composed of ‘coding’ and ‘noncoding’ regions. The coding regions are known as genes and contain the information necessary for a cell to make proteins. . . . Non-protein-coding regions . . . are not related directly to making proteins, [and] have been referred to as ‘junk’ DNA.” Butler 25. The adjective “junk” may mislead the layperson, for in fact this is the DNA region used with near certainty to identify a person. The term apparently is intended to indicate that this particular noncoding region, while useful and even dispositive for purposes like identity, does not show more far-reaching and complex characteristics like genetic traits.

Many of the patterns found in DNA are shared among all people, so forensic analysis focuses on “repeated DNA sequences scattered throughout the human genome,” known as “short tandem repeats” (STRs). Id. , at 147–148. The alternative possibilities for the size and frequency of these STRs at any given point along a strand of DNA are known as “alleles,” id. , at 25; and multiple alleles are analyzed in order to ensure that a DNA profile matches only one individual. Future refinements may improve pres- ent technology, but even now STR analysis makes it “possible to determine whether a biological tissue matches a suspect with near certainty.” Osborne , supra , at 62.

The Act authorizes Maryland law enforcement author-ities to collect DNA samples from “an individual who is charged with . . . a crime of violence or an attempt to commit a crime of violence; or . . . burglary or an attempt to commit burglary.” Md. Pub. Saf. Code Ann. §2–504(a)(3)(i) (Lexis 2011). Maryland law defines a crime of violence to include murder, rape, first-degree assault, kidnaping, arson, sexual assault, and a variety of other serious crimes. Md. Crim. Law Code Ann. §14–101 (Lexis 2012). Once taken, a DNA sample may not be processed or placed in a database before the individual is arraigned (unless the individual consents). Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011). It is at this point that a judicial officer ensures that there is probable cause to detain the arrestee on a qualifying serious offense. If “all qualifying criminal charges are determined to be unsupported by probable cause . . . the DNA sample shall be immediately destroyed.” §2–504(d)(2)(i). DNA samples are also destroyed if “a criminal action begun against the individual . . . does not result in a conviction,” “the conviction is finally reversed or vacated and no new trial is permitted,” or “the individual is granted an unconditional pardon.” §2–511(a)(1).

The Act also limits the information added to a DNA database and how it may be used. Specifically, “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of indi-viduals as specified in this subtitle.” §2–512(c). Tests for familial matches are also prohibited. See §2–506(d) (“A person may not perform a search of the statewide DNA data base for the purpose of identification of an offender in connection with a crime for which the offender may be a biological relative of the individual from whom the DNA sample was acquired”). The officers involved in taking and analyzing respondent’s DNA sample complied with the Act in all respects.

Respondent’s DNA was collected in this case using a common procedure known as a “buccal swab.” “Buccal cell collection involves wiping a small piece of filter paper or a cotton swab similar to a Q-tip against the inside cheek of an individual’s mouth to collect some skin cells.” Butler 86. The procedure is quick and painless. The swab touches inside an arrestee’s mouth, but it requires no “surgical intrusio[n] beneath the skin,” Winston v. Lee , 470 U. S. 753 , 760 (1985), and it poses no “threa[t] to the health or safety” of arrestees, id., at 763.

Respondent’s identification as the rapist resulted in part through the operation of a national project to standardize collection and storage of DNA profiles. Authorized by Congress and supervised by the Federal Bureau of Investigation, the Combined DNA Index System (CODIS) connects DNA laboratories at the local, state, and national level. Since its authorization in 1994, the CODIS system has grown to include all 50 States and a number of federal agencies. CODIS collects DNA profiles provided by local laboratories taken from arrestees, convicted offenders, and forensic evidence found at crime scenes. To participate in CODIS, a local laboratory must sign a memorandum of understanding agreeing to adhere to quality standards and submit to audits to evaluate compliance with the federal standards for scientifically rigorous DNA testing. Butler 270.

One of the most significant aspects of CODIS is the standardization of the points of comparison in DNA analysis. The CODIS database is based on 13 loci at which the STR alleles are noted and compared. These loci make possible extreme accuracy in matching individual samples, with a “random match probability of approximately 1 in 100 trillion (assuming unrelated individuals).” Ibid . The CODIS loci are from the non-protein coding junk regions of DNA, and “are not known to have any association with a genetic disease or any other genetic predisposition. Thus, the information in the database is only useful for human identity testing.” Id., at 279. STR information is recorded only as a “string of numbers”; and the DNA identification is accompanied only by information denoting the laboratory and the analyst responsible for the submission. Id., at 270. In short, CODIS sets uniform national standards for DNA matching and then facilitates connec tions between local law enforcement agencies who can share more specific information about matched STR profiles.

All 50 States require the collection of DNA from felony convicts, and respondent does not dispute the validity of that practice. See Brief for Respondent 48. Twenty-eight States and the Federal Government have adopted laws similar to the Maryland Act authorizing the collection of DNA from some or all arrestees. See Brief for State of California et al. as Amici Curiae 4, n. 1 (States Brief) (collecting state statutes). Although those statutes vary in their particulars, such as what charges require a DNA sample, their similarity means that this case implicates more than the specific Maryland law. At issue is a standard, expanding technology already in widespread use throughout the Nation.

Although the DNA swab procedure used here presents a question the Court has not yet addressed, the framework for deciding the issue is well established. The Fourth Amendment , binding on the States by the Fourteenth Amendment , provides 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.” It can be agreed that using a buccal swab on the inner tissues of a person’s cheek in order to obtain DNA samples is a search. Virtually any “intrusio[n] into the human body,” Schmerber v. California , 384 U. S. 757 , 770 (1966), will work an invasion of “ ‘cherished personal security’ that is subject to constitutional scrutiny,” Cupp v. Murphy , 412 U. S. 291 , 295 (1973) (quoting Terry v. Ohio , 392 U. S. 1 , 24–25 (1968)). The Court has applied the Fourth Amendment to police efforts to draw blood, see Schmerber , supra ; Missouri v. McNeely , 569 U. S. ___ (2013), scraping an arrestee’s fingernails to obtain trace evidence, see Cupp , supra , and even to “a breathalyzer test, which generally requires the production of alveolar or ‘deep lung’ breath for chemical analysis,” Skinner v. Railway Labor Executives’ Assn. , 489 U. S. 602 , 616 (1989).

A buccal swab is a far more gentle process than a venipuncture to draw blood. It involves but a light touch on the inside of the cheek; and although it can be deemed a search within the body of the arrestee, it requires no “surgical intrusions beneath the skin.” Winston , 470 U. S., at 760. The fact than an intrusion is negligible is of central relevance to determining reasonableness, although it is still a search as the law defines that term.

To say that the Fourth Amendment applies here is the beginning point, not the end of the analysis. “[T]he Fourth Amendment ’s proper function is to constrain, not against all intrusions as such, but against intrusions which are not justified in the circumstances, or which are made in an improper manner.” Schmerber , supra , at 768. “As the text of the Fourth Amendment indicates, the ultimate measure of the constitutionality of a governmental search is ‘reasonableness.’ ” Vernonia School Dist. 47J v. Acton , 515 U. S. 646 , 652 (1995). In giving content to the inquiry whether an intrusion is reasonable, the Court has preferred “some quantum of individualized suspicion . . . [as] a prerequisite to a constitutional search or seizure. But the Fourth Amendment imposes no irreducible requirement of such suspicion.” United States v. Martinez-Fuerte , 428 U. S. 543 , 560–561 (1976) (citation and footnote omitted).

In some circumstances, such as “[w]hen faced with special law enforcement needs, diminished expectations of privacy, minimal intrusions, or the like, the Court has found that certain general, or individual, circumstances may render a warrantless search or seizure reasonable.” Illinois v. McArthur , 531 U. S. 326 , 330 (2001). Those circumstances diminish the need for a warrant, either because “the public interest is such that neither a warrant nor probable cause is required,” Maryland v. Buie , 494 U. S. 325 , 331 (1990), or because an individual is already on notice, for instance because of his employment, see Skinner , supra , or the conditions of his release from government custody, see Samson v. California , 547 U. S. 843 (2006) , that some reasonable police intrusion on his pri-vacy is to be expected. The need for a warrant is perhaps least when the search involves no discretion that could properly be limited by the “interpo[lation of] a neutral magistrate between the citizen and the law enforcement officer.” Treasury Employees v. Von Raab , 489 U. S. 656 , 667 (1989).

The instant case can be addressed with this background. The Maryland DNA Collection Act provides that, in order to obtain a DNA sample, all arrestees charged with serious crimes must furnish the sample on a buccal swab applied, as noted, to the inside of the cheeks. The arrestee is already in valid police custody for a serious offense supported by probable cause. The DNA collection is not subject to the judgment of officers whose perspective might be “colored by their primary involvement in ‘the often competitive enterprise of ferreting out crime.’ ” Terry , supra , at 12 (quoting Johnson v. United States , 333 U. S. 10 , 14 (1948)). As noted by this Court in a different but still instructive context involving blood testing, “[b]oth the circumstances justifying toxicological testing and the permissible limits of such intrusions are defined nar- rowly and specifically in the regulations that authorize them . . . . Indeed, in light of the standardized nature of the tests and the minimal discretion vested in those charged with administering the program, there are virtu ally no facts for a neutral magistrate to evaluate.” Skinner , supra , at 622. Here, the search effected by the buccal swab of respondent falls within the category of cases this Court has analyzed by reference to the proposition that the “touchstone of the Fourth Amendment is reasonableness, not individualized suspicion.” Samson , supra , at 855, n. 4.

Even if a warrant is not required, a search is not beyond Fourth Amendment scrutiny; for it must be reasonable in its scope and manner of execution. Urgent government interests are not a license for indiscriminate police behavior. To say that no warrant is required is merely to acknowledge that “rather than employing a per se rule of unreasonableness, we balance the privacy-related and law enforcement-related concerns to determine if the intrusion was reasonable.” McArthur , supra , at 331. This application of “traditional standards of reasonableness” requires a court to weigh “the promotion of legitimate governmen- tal interests” against “the degree to which [the search] intrudes upon an individual’s privacy.” Wyoming v. Houghton , 526 U. S. 295 , 300 (1999). An assessment of reasonableness to determine the lawfulness of requiring this class of arrestees to provide a DNA sample is central to the instant case.

The legitimate government interest served by the Maryland DNA Collection Act is one that is well established: the need for law enforcement officers in a safe and accurate way to process and identify the persons and possessions they must take into custody. It is beyond dispute that “probable cause provides legal justification for arresting a person suspected of crime, and for a brief period of detention to take the administrative steps incident to arrest.” Gerstein v. Pugh , 420 U. S. 103 , 113–114 (1975). Also uncontested is the “right on the part of the Government, always recognized under English and American law, to search the person of the accused when legally arrested.” Weeks v. United States , 232 U. S. 383 , 392 (1914), overruled on other grounds, Mapp v. Ohio , 367 U. S. 643 (1961) . “The validity of the search of a person incident to a lawful arrest has been regarded as settled from its first enunciation, and has remained virtually unchallenged.” United States v. Robinson , 414 U. S. 218 , 224 (1973). Even in that context, the Court has been clear that individual suspicion is not necessary, because “[t]he constitutionality of a search incident to an arrest does not depend on whether there is any indication that the person ar-rested possesses weapons or evidence. The fact of a lawful arrest, standing alone, authorizes a search.” Michigan v. DeFillippo , 443 U. S. 31 , 35 (1979).

The “routine administrative procedure[s] at a police sta-tion house incident to booking and jailing the suspect” derive from different origins and have different constitutional justifications than, say, the search of a place, Illinois v. Lafayette , 462 U. S. 640 , 643 (1983); for the search of a place not incident to an arrest depends on the “fair probability that contraband or evidence of a crime will be found in a particular place,” Illinois v. Gates , 462 U. S. 213 , 238 (1983). The interests are further different when an individual is formally processed into police custody. Then “the law is in the act of subjecting the body of the accused to its physical dominion.” People v. Chiagles , 237 N. Y. 193, 197, 142 N. E. 583, 584 (1923) (Cardozo, J.). When probable cause exists to remove an individual from the normal channels of society and hold him in legal custody, DNA identification plays a critical role in serving those interests.

First, “[i]n every criminal case, it is known and must be known who has been arrested and who is being tried.” Hiibel v. Sixth Judicial Dist. Court of Nev., Humboldt Cty ., 542 U. S. 177 , 191 (2004). An individual’s identity is more than just his name or Social Security number, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indictment. Identity has never been considered limited to the name on the arrestee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. “It is a well recognized aspect of criminal conduct that the per-petrator will take unusual steps to conceal not only his conduct, but also his identity. Disguises used while committing a crime may be supplemented or replaced by changed names, and even changed physical features.” Jones v. Murray , 962 F. 2d 302 , 307 (CA4 1992). An “arrestee may be carrying a false ID or lie about his identity,” and “criminal history records . . . can be inaccurate or incomplete.” Florence v. Board of Chosen Freeholders of County of Burlington , 566 U. S. ___, ___ (2012) (slip op., at 16).

A suspect’s criminal history is a critical part of his identity that officers should know when processing him for detention. It is a common occurrence that “[p]eople detained for minor offenses can turn out to be the most devious and dangerous criminals. Hours after the Oklahoma City bombing, Timothy McVeigh was stopped by a state trooper who noticed he was driving without a license plate. Police stopped serial killer Joel Rifkin for the same reason. One of the terrorists involved in the September 11 attacks was stopped and ticketed for speeding just two days before hijacking Flight 93.” Id., at ___ (slip op., at 14) (citations omitted). Police already seek this crucial identifying information. They use routine and accepted means as varied as comparing the suspect’s booking photograph to sketch artists’ depictions of persons of interest, showing his mugshot to potential witnesses, and of course making a computerized comparison of the arrestee’s fin gerprints against electronic databases of known criminals and unsolved crimes. In this respect the only difference between DNA analysis and the accepted use of fingerprint databases is the unparalleled accuracy DNA provides.

The task of identification necessarily entails searching public and police records based on the identifying information provided by the arrestee to see what is already known about him. The DNA collected from arrestees is an irrefutable identification of the person from whom it was taken. Like a fingerprint, the 13 CODIS loci are not themselves evidence of any particular crime, in the way that a drug test can by itself be evidence of illegal narcotics use. A DNA profile is useful to the police because it gives them a form of identification to search the records already in their valid possession. In this respect the use of DNA for identification is no different than matching an arrestee’s face to a wanted poster of a previously unidentified suspect; or matching tattoos to known gang symbols to reveal a criminal affiliation; or matching the arrestee’s fingerprints to those recovered from a crime scene. See Tr. of Oral Arg. 19. DNA is another metric of identification used to connect the arrestee with his or her public persona, as reflected in records of his or her actions that are available to the police. Those records may be linked to the arrestee by a variety of relevant forms of identification, including name, alias, date and time of previous convictions and the name then used, photograph, Social Security number, or CODIS profile. These data, found in official records, are checked as a routine matter to produce a more comprehensive record of the suspect’s complete identity. Finding occurrences of the arrestee’s CODIS profile in outstanding cases is consistent with this common practice. It uses a different form of identification than a name or fingerprint, but its function is the same.

Second, law enforcement officers bear a responsibility for ensuring that the custody of an arrestee does not cre ate inordinate “risks for facility staff, for the existing detainee population, and for a new detainee.” Florence , supra , at ___ (slip op., at 10). DNA identification can provide untainted information to those charged with de-taining suspects and detaining the property of any felon. For these purposes officers must know the type of person whom they are detaining, and DNA allows them to make critical choices about how to proceed.

“Knowledge of identity may inform an officer that a suspect is wanted for another offense, or has a record of violence or mental disorder. On the other hand, knowing identity may help clear a suspect and al- low the police to concentrate their efforts elsewhere. Identity may prove particularly important in [certain cases, such as] where the police are investigating what appears to be a domestic assault. Officers called to investigate domestic disputes need to know whom they are dealing with in order to assess the situation, the threat to their own safety, and possible danger to the potential victim.” Hiibel , supra , at 186.

Recognizing that a name alone cannot address this interest in identity, the Court has approved, for example, “a visual inspection for certain tattoos and other signs of gang affiliation as part of the intake process,” because “[t]he identification and isolation of gang members before they are admitted protects everyone.” Florence, supra, at ___ (slip op., at 11).

Third, looking forward to future stages of criminal prosecution, “the Government has a substantial interest in ensuring that persons accused of crimes are available for trials.” Bell v. Wolfish , 441 U. S. 520 , 534 (1979). A person who is arrested for one offense but knows that he has yet to answer for some past crime may be more inclined to flee the instant charges, lest continued contact with the criminal justice system expose one or more other serious offenses. For example, a defendant who had committed a prior sexual assault might be inclined to flee on a burglary charge, knowing that in every State a DNA sample would be taken from him after his conviction on the burglary charge that would tie him to the more serious charge of rape. In addition to subverting the administration of justice with respect to the crime of arrest, this ties back to the interest in safety; for a detainee who absconds from custody presents a risk to law enforcement officers, other detainees, victims of previous crimes, witnesses, and society at large.

Fourth, an arrestee’s past conduct is essential to an assessment of the danger he poses to the public, and this will inform a court’s determination whether the individual should be released on bail. “The government’s interest in preventing crime by arrestees is both legitimate and compelling.” United States v. Salerno , 481 U. S. 739 , 749 (1987). DNA identification of a suspect in a violent crime provides critical information to the police and judicial officials in making a determination of the arrestee’s future dangerousness. This inquiry always has entailed some scrutiny beyond the name on the defendant’s driver’s license. For example, Maryland law requires a judge to take into account not only “the nature and circumstances of the offense charged” but also “the defendant’s family ties, employment status and history, financial resources, reputation, character and mental condition, length of res-idence in the community.” 1 Md. Rules 4–216(f)(1)(A), (C) (2013). Knowing that the defendant is wanted for a previous violent crime based on DNA identification is especially probative of the court’s consideration of “the danger of the defendant to the alleged victim, another person, or the community.” Rule 4–216(f)(1)(G); see also 18 U. S. C. §3142 (2006 ed. and Supp. V) (similar requirements).

This interest is not speculative. In considering laws to require collecting DNA from arrestees, government agencies around the Nation found evidence of numerous cases in which felony arrestees would have been identified as violent through DNA identification matching them to previous crimes but who later committed additional crimes because such identification was not used to detain them. See Denver’s Study on Preventable Crimes (2009) (three examples), online at http://www.denverda.org/DNA_ Documents/Denver%27s%20Preventable%20Crimes%20 Study.pdf (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file); Chi-cago’s Study on Preventable Crimes (2005) (five exam- ples), online at http://www.denverda.org/DNA_Documents/ Arrestee_Database/Chicago%20Preventable%20Crimes- Final.pdf; Maryland Study on Preventable Crimes (2008) (three examples), online at http://www.denverda.org/DNA_ Documents/MarylandDNAarresteestudy.pdf.

Present capabilities make it possible to complete a DNA identification that provides information essential to determining whether a detained suspect can be released pending trial. See, e.g., States Brief 18, n. 10 (“DNA identification database samples have been processed in as few as two days in California, although around 30 days has been average”). Regardless of when the initial bail decision is made, release is not appropriate until a further determination is made as to the person’s identity in the sense not only of what his birth certificate states but also what other records and data disclose to give that identity more meaning in the whole context of who the person really is. And even when release is permitted, the background identity of the suspect is necessary for determining what conditions must be met before release is allowed. If release is authorized, it may take time for the conditions to be met, and so the time before actual release can be substantial. For example, in the federal system, defendants released conditionally are detained on average for 112 days; those released on unsecured bond for 37 days; on personal recognizance for 36 days; and on other financial conditions for 27 days. See Dept. of Justice, Bureau of Justice Statistics, Compendium of Federal Justice Statistics 45 (NCJ–213476, Dec. 2006) online at http://bjs.gov/ content/pub/pdf/cfjs04.pdf. During this entire period, ad-ditional and supplemental data establishing more about the person’s identity and background can provide critical information relevant to the conditions of release and whether to revisit an initial release determination. The facts of this case are illustrative. Though the record is not clear, if some thought were being given to releasing the respondent on bail on the gun charge, a release that would take weeks or months in any event, when the DNA report linked him to the prior rape, it would be relevant to the conditions of his release. The same would be true with a supplemental fingerprint report.

Even if an arrestee is released on bail, development of DNA identification revealing the defendant’s unknown violent past can and should lead to the revocation of his conditional release. See 18 U. S. C. §3145(a) (providing for revocation of release); see also States Brief 11–12 (discussing examples where bail and diversion determinations were reversed after DNA identified the arrestee’s vio- lent history). Pretrial release of a person charged with a dangerous crime is a most serious responsibility. It is reason-able in all respects for the State to use an accepted database to determine if an arrestee is the object of suspicion in other serious crimes, suspicion that may provide a strong incentive for the arrestee to escape and flee.

Finally, in the interests of justice, the identification of an arrestee as the perpetrator of some heinous crime may have the salutary effect of freeing a person wrongfully imprisoned for the same offense. “[P]rompt [DNA] testing . . . would speed up apprehension of criminals before they commit additional crimes, and prevent the grotesque detention of . . . innocent people.” J. Dwyer, P. Neufeld, & B. Scheck, Actual Innocence 245 (2000).

Because proper processing of arrestees is so important and has consequences for every stage of the criminal process, the Court has recognized that the “governmen- tal interests underlying a station-house search of the ar-restee’s person and possessions may in some circumstances be even greater than those supporting a search imme-diately following arrest.” Lafayette , 462 U. S., at 645. Thus, the Court has been reluctant to circumscribe the authority of the police to conduct reasonable booking searches. For example, “[t]he standards traditionally governing a search incident to lawful arrest are not . . . commuted to the stricter Terry standards.” Robinson , 414 U. S., at 234. Nor are these interests in identifica- tion served only by a search of the arrestee himself. “[I]nspection of an arrestee’s personal property may assist the police in ascertaining or verifying his identity.” Lafayette , supra , at 646. And though the Fifth Amendment ’s protection against self-incrimination is not, as a general rule, governed by a reasonableness standard, the Court has held that “questions . . . reasonably related to the police’s administrative concerns . . . fall outside the protections of Miranda [v. Arizona , 384 U. S. 436 (1966) ] and the answers thereto need not be suppressed.” Pennsylvania v. Muniz , 496 U. S. 582 , 601–602 (1990).

DNA identification represents an important advance in the techniques used by law enforcement to serve le-gitimate police concerns for as long as there have been arrests, concerns the courts have acknowledged and approved for more than a century. Law enforcement agencies routinely have used scientific advancements in their standard procedures for the identification of arrestees. “Police had been using photography to capture the faces of criminals almost since its invention.” S. Cole, Suspect Identities 20 (2001). Courts did not dispute that practice, concluding that a “sheriff in making an arrest for a felony on a warrant has the right to exercise a discretion . . . , [if] he should deem it necessary to the safe-keeping of a prisoner, and to prevent his escape, or to enable him the more readily to retake the prisoner if he should escape, to take his photograph.” State ex rel. Bruns v. Clausmier , 154 Ind. 599, 601, 603, 57 N. E. 541, 542 (1900). By the time that it had become “the daily practice of the police officers and detectives of crime to use photographic pictures for the discovery and identification of criminals,” the courts likewise had come to the conclusion that “it would be [a] matter of regret to have its use unduly restricted upon any fanciful theory or constitutional privilege.” Shaffer v. United States , 24 App. D. C. 417, 426 (1904).

Beginning in 1887, some police adopted more exacting means to identify arrestees, using the system of precise physical measurements pioneered by the French anthropologist Alphonse Bertillon. Bertillon identification consisted of 10 measurements of the arrestee’s body, along with a “scientific analysis of the features of the face and an exact anatomical localization of the various scars, marks, &c., of the body.” Defense of the Bertillon System, N. Y. Times, Jan. 20, 1896, p. 3. “[W]hen a prisoner was brought in, his photograph was taken according to the Bertillon system, and his body measurements were then made. The measurements were made . . . and noted down on the back of a card or a blotter, and the photograph of the prisoner was expected to be placed on the card. This card, therefore, furnished both the likeness and description of the prisoner, and was placed in the rogues’ gallery, and copies were sent to various cities where similar records were kept.” People ex rel. Jones v. Diehl , 53 App. Div. 645, 646, 65 N. Y. S. 801, 802 (1900). As in the present case, the point of taking this information about each ar restee was not limited to verifying that the proper name was on the indictment. These procedures were used to “facilitate the recapture of escaped prisoners,” to aid “the investigation of their past records and personal history,” and “to preserve the means of identification for . . . fu- ture supervision after discharge.” Hodgeman v. Olsen , 86 Wash. 615, 619, 150 P. 1122, 1124 (1915); see also McGovern v. Van Riper , 137 N. J. Eq. 24, 33–34, 43 A. 2d 514, 519 (Ch. 1945) (“[C]riminal identification is said to have two main purposes: (1) The identification of the accused as the person who committed the crime for which he is being held; and, (2) the identification of the accused as the same person who has been previously charged with, or convicted of, other offenses against the criminal law”).

Perhaps the most direct historical analogue to the DNA technology used to identify respondent is the familiar practice of fingerprinting arrestees. From the advent of this technique, courts had no trouble determining that fingerprinting was a natural part of “the administrative steps incident to arrest.” County of Riverside v. McLaughlin , 500 U. S. 44 , 58 (1991). In the seminal case of United States v. Kelly , 55 F. 2d 67 (CA2 1932), Judge Augustus Hand wrote that routine fingerprinting did not violate the Fourth Amendment precisely because it fit within the accepted means of processing an arrestee into custody:

“Finger printing seems to be no more than an exten-sion of methods of identification long used in dealing with persons under arrest for real or supposed vio-lations of the criminal laws. It is known to be a very certain means devised by modern science to reach the desired end, and has become especially important in a time when increased population and vast aggregations of people in urban centers have rendered the notoriety of the individual in the community no longer a ready means of identification.

. . . . .

“We find no ground in reason or authority for interfering with a method of identifying persons charged with crime which has now become widely known and frequently practiced.” Id. , at 69–70.

By the middle of the 20th century, it was considered “elementary that a person in lawful custody may be required to submit to photographing and fingerprinting as part of routine identification processes.” Smith v. United States , 324 F. 2d 879 , 882 (CADC 1963) (Burger, J.) (citations omitted).

DNA identification is an advanced technique superior to fingerprinting in many ways, so much so that to insist on fingerprints as the norm would make little sense to either the forensic expert or a layperson. The additional intrusion upon the arrestee’s privacy beyond that associated with fingerprinting is not significant, see Part V, infra , and DNA is a markedly more accurate form of identifying arrestees. A suspect who has changed his facial features to evade photographic identification or even one who has undertaken the more arduous task of altering his fingerprints cannot escape the revealing power of his DNA.

The respondent’s primary objection to this analogy is that DNA identification is not as fast as fingerprinting, and so it should not be considered to be the 21st-century equivalent. See Tr. of Oral Arg. 53. But rapid analysis of fingerprints is itself of recent vintage. The FBI’s vaunted Integrated Automated Fingerprint Identification System (IAFIS) was only “launched on July 28, 1999. Prior to this time, the processing of . . . fingerprint submissions was largely a manual, labor-intensive process, taking weeks or months to process a single submission.” Federal Bureau of Investigation, Integrated Automated Fingerprint Identification System, online at http://www.fbi.gov/about-us/cjis/ fingerprints_biometrics/iafis/iafis. It was not the advent of this technology that rendered fingerprint analysis constitutional in a single moment. The question of how long it takes to process identifying information obtained from a valid search goes only to the efficacy of the search for its purpose of prompt identification, not the constitutionality of the search. Cf. Ontario v. Quon , 560 U. S. ___, ___ (2010) (slip op., at 15). Given the importance of DNA in the identification of police records pertaining to arrestees and the need to refine and confirm that identity for its important bearing on the decision to continue release on bail or to impose of new conditions, DNA serves an essential purpose despite the existence of delays such as the one that occurred in this case. Even so, the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances. See, e.g., At-torney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013) (DNA processing time reduced from 125 days in 2010 to 20 days in 2012), online at http://ohioattorneygeneral.gov/Media/News-Releases/January- 2013/Attorney-General-DeWine-Announces-Significant- Drop; Gov. Jindal Announces Elimination of DNA Backlog, DNA Unit Now Operating in Real Time (Nov. 17, 2011) (average DNA report time reduced from a year or more in 2009 to 20 days in 2011), online at http:// www.gov.state.la.us/index.cfm?md=newsroom&tmp=detail&articleID=3102. And the FBI has already begun testing devices that will enable police to process the DNA of arrestees within 90 minutes. See Brief for National District Attorneys Association as Amicus Curiae 20–21; Tr. of Oral Arg. 17. An assessment and understanding of the reasonableness of this minimally invasive search of a person detained for a serious crime should take account of these technical advances. Just as fingerprinting was constitutional for generations prior to the introduction of IAFIS, DNA identification of arrestees is a permissible tool of law enforcement today. New technology will only further improve its speed and therefore its effectiveness. And, as noted above, actual release of a serious offender as a routine matter takes weeks or months in any event. By identifying not only who the arrestee is but also what other available records disclose about his past to show who he is, the police can ensure that they have the proper person under arrest and that they have made the necessary arrangements for his custody; and, just as important, they can also prevent suspicion against or prosecution of the innocent.

In sum, there can be little reason to question “the legitimate interest of the government in knowing for an absolute certainty the identity of the person arrested, in knowing whether he is wanted elsewhere, and in ensuring his identification in the event he flees prosecution.” 3 W. LaFave, Search and Seizure §5.3(c), p. 216 (5th ed. 2012). To that end, courts have confirmed that the Fourth Amendment allows police to take certain routine “administrative steps incident to arrest— i.e., . . . book[ing], photograph[ing], and fingerprint[ing].” McLaughlin , 500 U. S. , at 58. DNA identification of arrestees, of the type approved by the Maryland statute here at issue, is “no more than an extension of methods of identification long used in dealing with persons under arrest.” Kelly , 55 F. 2d, at 69. In the balance of reasonableness required by the Fourth Amendment , therefore, the Court must give great weight both to the significant government interest at stake in the identification of arrestees and to the unmatched potential of DNA identification to serve that interest.

By comparison to this substantial government interest and the unique effectiveness of DNA identification, the intrusion of a cheek swab to obtain a DNA sample is a minimal one. True, a significant government interest does not alone suffice to justify a search. The government interest must outweigh the degree to which the search in-vades an individual’s legitimate expectations of privacy. In considering those expectations in this case, however, the necessary predicate of a valid arrest for a serious offense is fundamental. “Although the underlying command of the Fourth Amendment is always that searches and seizures be reasonable, what is reasonable depends on the context within which a search takes place.” New Jersey v. T. L. O. , 469 U. S. 325 , 337 (1985). “[T]he legitimacy of certain privacy expectations vis-à-vis the State may depend upon the individual’s legal relationship with the State.” Vernonia School Dist. 47J , 515 U. S., at 654.

The reasonableness of any search must be considered in the context of the person’s legitimate expectations of privacy. For example, when weighing the invasiveness of urinalysis of high school athletes, the Court noted that “[l]egitimate privacy expectations are even less with regard to student athletes. . . . Public school locker rooms, the usual sites for these activities, are not notable for the privacy they afford.” Id. , at 657. Likewise, the Court has used a context-specific benchmark inapplicable to the public at large when “the expectations of privacy of covered employees are diminished by reason of their participa-tion in an industry that is regulated pervasively,” Skinner , 489 U. S., at 627, or when “the ‘operational realities of the workplace’ may render entirely reasonable certain work-related intrusions by supervisors and co-workers that might be viewed as unreasonable in other contexts,” Von Raab , 489 U. S., at 671.

The expectations of privacy of an individual taken into police custody “necessarily [are] of a diminished scope.” Bell, 441 U. S., at 557. “[B]oth the person and the property in his immediate possession may be searched at the station house.” United States v. Edwards , 415 U. S. 800 , 803 (1974). A search of the detainee’s person when he is booked into custody may “ ‘involve a relatively extensive exploration,’ ” Robinson , 414 U. S., at 227, including “requir[ing] at least some detainees to lift their genitals or cough in a squatting position,” Florence , 566 U. S., at ___ (slip op., at 13).

In this critical respect, the search here at issue differs from the sort of programmatic searches of either the public at large or a particular class of regulated but otherwise law-abiding citizens that the Court has previously labeled as “ ‘special needs’ ” searches. Chandler v. Miller , 520 U. S. 305 , 314 (1997). When the police stop a motorist at a checkpoint, see Indianapolis v. Edmond , 531 U. S. 32 (2000) , or test a political candidate for illegal narcotics, see Chandler, supra , they intrude upon substantial expectations of privacy. So the Court has insisted on some purpose other than “to detect evidence of ordinary criminal wrongdoing” to justify these searches in the absence of individualized suspicion. Edmond , supra, at 38. Once an individual has been arrested on probable cause for a dangerous offense that may require detention before trial, however, his or her expectations of privacy and freedom from police scrutiny are reduced. DNA identification like that at issue here thus does not require consideration of any unique needs that would be required to justify searching the average citizen. The special needs cases, though in full accord with the result reached here, do not have a direct bearing on the issues presented in this case, because unlike the search of a citizen who has not been suspected of a wrong, a detainee has a reduced expectation of privacy.

The reasonableness inquiry here considers two other circumstances in which the Court has held that particularized suspicion is not categorically required: “diminished expectations of privacy [and] minimal intrusions.” McArthur , 531 U. S., at 330. This is not to suggest that any search is acceptable solely because a person is in custody. Some searches, such as invasive surgery, see Winston , 470 U. S. 753 , or a search of the arrestee’s home, see Chimel v. California , 395 U. S. 752 (1969) , involve either greater intrusions or higher expectations of privacy than are present in this case. In those situations, when the Court must “balance the privacy-related and law enforcement-related concerns to determine if the intrusion was rea-sonable,” McArthur , supra , at 331, the privacy-related concerns are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.

Here, by contrast to the approved standard procedures incident to any arrest detailed above, a buccal swab involves an even more brief and still minimal intrusion. A gentle rub along the inside of the cheek does not break the skin, and it “involves virtually no risk, trauma, or pain.” Schmerber , 384 U. S., at 771. “A crucial factor in analyzing the magnitude of the intrusion . . . is the extent to which the procedure may threaten the safety or health of the individual,” Winston , supra , at 761, and nothing suggests that a buccal swab poses any physical danger whatsoever. A brief intrusion of an arrestee’s person is subject to the Fourth Amendment , but a swab of this nature does not increase the indignity already attendant to normal incidents of arrest.

In addition the processing of respondent’s DNA sam-ple’s 13 CODIS loci did not intrude on respondent’s privacy in a way that would make his DNA identification unconstitutional.

First, as already noted, the CODIS loci come from noncoding parts of the DNA that do not reveal the genetic traits of the arrestee. While science can always progress further, and those progressions may have Fourth Amend ment consequences, alleles at the CODIS loci “are not at present revealing information beyond identification.” Katsanis & Wagner, Characterization of the Standard and Recommended CODIS Markers , 58 J. Forensic Sci. S169, S171 (2013). The argument that the testing at issue in this case reveals any private medical information at all is open to dispute.

And even if non-coding alleles could provide some information, they are not in fact tested for that end. It is undisputed that law enforcement officers analyze DNA for the sole purpose of generating a unique identifying number against which future samples may be matched. This parallels a similar safeguard based on actual practice in the school drug-testing context, where the Court deemed it “significant that the tests at issue here look only for drugs, and not for whether the student is, for example, epileptic, pregnant, or diabetic.” Vernonia School Dist. 47J , 515 U. S., at 658. If in the future police analyze samples to determine, for instance, an arrestee’s predisposition for a particular disease or other hereditary factors not relevant to identity, that case would present additional privacy concerns not present here.

Finally, the Act provides statutory protections that guard against further invasion of privacy. As noted above, the Act requires that “[o]nly DNA records that directly relate to the identification of individuals shall be collected and stored.” Md. Pub. Saf. Code Ann . §2–505(b)(1). No purpose other than identification is permissible: “A person may not willfully test a DNA sample for information that does not relate to the identification of individuals as specified in this subtitle.” §2–512(c). This Court has noted often that “a ‘statutory or regulatory duty to avoid unwarranted disclosures’ generally allays . . . privacy concerns.” NASA v. Nelson , 562 U. S. ___, ___ (2011) (slip op., at 20) (quoting Whalen v. Roe , 429 U. S. 589 , 605 (1977)). The Court need not speculate about the risks posed “by a system that did not contain comparable security provisions.” Id., at 606. In light of the scientific and statutory safeguards, once respondent’s DNA was lawfully collected the STR analysis of respondent’s DNA pursuant to CODIS procedures did not amount to a significant invasion of privacy that would render the DNA identification impermissible under the Fourth Amendment .

In light of the context of a valid arrest supported by probable cause respondent’s expectations of privacy were not offended by the minor intrusion of a brief swab of his cheeks. By contrast, that same context of arrest gives rise to significant state interests in identifying respondent not only so that the proper name can be attached to his charges but also so that the criminal justice system can make informed decisions concerning pretrial custody. Upon these considerations the Court concludes that DNA identification of arrestees is a reasonable search that can be considered part of a routine booking procedure. When officers make an arrest supported by probable cause to hold for a serious offense and they bring the suspect to the station to be detained in custody, taking and analyzing a cheek swab of the arrestee’s DNA is, like fingerprinting and photographing, a legitimate police booking procedure that is reasonable under the Fourth Amendment .

The judgment of the Court of Appeals of Maryland is reversed.

It is so ordered.

Justice Scalia , with whom Justice Ginsburg, Justice Sotomayor, and Justice Kagan join, dissenting.

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. And the Court’s comparison of Maryland’s DNA searches to other techniques, such as fingerprinting, can seem apt only to those who know no more than today’s opinion has chosen to tell them about how those DNA searches actually work.

At the time of the Founding, Americans despised the British use of so-called “general warrants”—warrants not grounded upon a sworn oath of a specific infraction by a particular individual, and thus not limited in scope and application. The first Virginia Constitution declared that “general warrants, whereby any officer or messenger may be commanded to search suspected places without evidence of a fact committed,” or to search a person “whose offence is not particularly described and supported by evidence,” “are grievous and oppressive, and ought not be granted.” Va. Declaration of Rights §10 (1776), in 1 B. Schwartz, The Bill of Rights: A Documentary History 234, 235 (1971). The Maryland Declaration of Rights similarly provided that general warrants were “illegal.” Md. Declaration of Rights §XXIII (1776), in id., at 280, 282.

In the ratification debates, Antifederalists sarcastically predicted that the general, suspicionless warrant would be among the Constitution’s “blessings.” Blessings of the New Government, Independent Gazetteer, Oct. 6, 1787, in 13 Documentary History of the Ratification of the Constitution 345 (J. Kaminski & G. Saladino eds. 1981). “Brutus” of New York asked why the Federal Constitution contained no provision like Maryland’s, Brutus II, N. Y. Journal, Nov. 1, 1787, in id., at 524, and Patrick Henry warned that the new Federal Constitution would expose the citizenry to searches and seizures “in the most arbitrary manner, without any evidence or reason.” 3 Debates on the Federal Constitution 588 (J. Elliot 2d ed. 1854).

Madison’s draft of what became the Fourth Amendment answered these charges by providing that the “rights of the people to be secured in their persons . . . from all unreasonable searches and seizures, shall not be violated by warrants issued without probable cause . . . or not particularly describing the places to be searched.” 1 Annals of Cong. 434–435 (1789). As ratified, the Fourth Amendment ’s Warrant Clause forbids a warrant to “issue” except “upon probable cause,” and requires that it be “particula[r]” (which is to say, individualized ) to “the place to be searched, and the persons or things to be seized.” And we have held that, even when a warrant is not constitution- ally necessary, the Fourth Amendment ’s general prohibition of “unreasonable” searches imports the same requirement of individualized suspicion. See Chandler v. Miller , 520 U. S. 305 , 308 (1997).

Although there is a “closely guarded category of constitutionally permissible suspicionless searches,” id., at 309, that has never included searches designed to serve “the normal need for law enforcement,” Skinner v. Railway Labor Executives’ Assn. , 489 U. S. 602 , 619 (1989) (internal quotation marks omitted). Even the common name for suspicionless searches—“special needs” searches—itself reflects that they must be justified, always , by concerns “other than crime detection.” Chandler , supra, at 313–314. We have approved random drug tests of railroad employees, yes—but only because the Government’s need to “regulat[e] the conduct of railroad employees to ensure safety” is distinct from “normal law enforcement.” Skinner , supra, at 620. So too we have approved suspicionless searches in public schools—but only because there the government acts in furtherance of its “responsibilities . . . as guardian and tutor of children entrusted to its care.” Vernonia School Dist. 47J v. Acton , 515 U. S. 646 , 665 (1995).

So while the Court is correct to note ( ante, at 8–9) that there are instances in which we have permitted searches without individualized suspicion, “[i]n none of these cases . . . did we indicate approval of a [search] whose primary purpose was to detect evidence of ordinary criminal wrongdoing.” Indianapolis v. Edmond , 531 U. S. 32 , 38 (2000). That limitation is crucial. It is only when a governmental purpose aside from crime-solving is at stake that we engage in the free-form “reasonableness” inquiry that the Court indulges at length today. To put it another way, both the legitimacy of the Court’s method and the correctness of its outcome hinge entirely on the truth of a single proposition: that the primary purpose of these DNA searches is something other than simply discovering evidence of criminal wrongdoing. As I detail below, that proposition is wrong.

The Court alludes at several points (see ante, at 11, 25) to the fact that King was an arrestee, and arrestees may be validly searched incident to their arrest. But the Court does not really rest on this principle, and for good reason: The objects of a search incident to arrest must be either (1) weapons or evidence that might easily be destroyed, or (2) evidence relevant to the crime of arrest. See Arizona v. Gant , 556 U. S. 332 , 343–344 (2009); Thornton v. United States , 541 U. S. 615 , 632 (2004) ( Scalia , J., concurring in judgment). Neither is the object of the search at issue here.

The Court hastens to clarify that it does not mean to approve invasive surgery on arrestees or warrantless searches of their homes. Ante, at 25. That the Court feels the need to disclaim these consequences is as damning a criticism of its suspicionless-search regime as any I can muster. And the Court’s attempt to distinguish those hypothetical searches from this real one is unconvincing. We are told that the “privacy-related concerns” in the search of a home “are weighty enough that the search may require a warrant, notwithstanding the diminished expectations of privacy of the arrestee.” Ante, at 26. But why are the “privacy-related concerns” not also “weighty” when an intrusion into the body is at stake? (The Fourth Amendment lists “persons” first among the entities protected against unreasonable searches and seizures.) And could the police engage, without any suspicion of wrongdoing, in a “brief and . . . minimal” intrusion into the home of an arrestee—perhaps just peeking around the curtilage a bit? See ante, at 26. Obviously not.

At any rate, all this discussion is beside the point. No matter the degree of invasiveness, suspicionless searches are never allowed if their principal end is ordinary crime-solving. A search incident to arrest either serves other ends (such as officer safety, in a search for weapons) or is not suspicionless (as when there is reason to believe the arrestee possesses evidence relevant to the crime of arrest).

Sensing (correctly) that it needs more, the Court elaborates at length the ways that the search here served the special purpose of “identifying” King. 1 But that seems to me quite wrong—unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest.” At points the Court does appear to use “identifying” in that peculiar sense—claiming, for example, that knowing “an arrestee’s past conduct is essential to an assessment of the danger he poses.” Ante, at 15. If identifying someone means finding out what unsolved crimes he has committed, then identification is indistinguishable from the ordinary law-enforcement aims that have never been thought to justify a suspicionless search. Searching every lawfully stopped car, for example, might turn up information about unsolved crimes the driver had committed, but no one would say that such a search was aimed at “identifying” him, and

no court would hold such a search lawful. I will therefore assume that the Court means that the DNA search at issue here was useful to “identify” King in the normal sense of that word—in the sense that would identify the author of Introduction to the Principles of Morals and Legislation as Jeremy Bentham.

The portion of the Court’s opinion that explains the identification rationale is strangely silent on the actual workings of the DNA search at issue here. To know those facts is to be instantly disabused of the notion that what happened had anything to do with identifying King.

King was arrested on April 10, 2009, on charges unrelated to the case before us. That same day, April 10, the police searched him and seized the DNA evidence at issue here. What happened next? Reading the Court’s opinion, particularly its insistence that the search was necessary to know “who [had] been arrested,” ante, at 11, one might guess that King’s DNA was swiftly processed and his identity thereby confirmed—perhaps against some master database of known DNA profiles, as is done for fingerprints. After all, was not the suspicionless search here crucial to avoid “inordinate risks for facility staff” or to “existing detainee population,” ante, at 14? Surely, then— surely —the State of Maryland got cracking on those grave risks immediately, by rushing to identify King with his DNA as soon as possible.

Nothing could be further from the truth. Maryland officials did not even begin the process of testing King’s DNA that day. Or, actually, the next day. Or the day after that. And that was for a simple reason: Maryland law forbids them to do so. A “DNA sample collected from an individual charged with a crime . . . may not be tested or placed in the statewide DNA data base system prior to the first scheduled arraignment date.” Md. Pub. Saf. Code Ann. §2–504(d)(1) (Lexis 2011) (emphasis added). And King’s first appearance in court was not until three days after his arrest. (I suspect, though, that they did not wait three days to ask his name or take his fingerprints.)

This places in a rather different light the Court’s solemn declaration that the search here was necessary so that King could be identified at “every stage of the criminal process.” Ante, at 18. I hope that the Maryland officials who read the Court’s opinion do not take it seriously. Acting on the Court’s misperception of Maryland law could lead to jail time. See Md. Pub. Saf. Code Ann. §2–512(c)–(e) (punishing by up to five years’ imprisonment anyone who obtains or tests DNA information except as provided by statute). Does the Court really believe that Maryland did not know whom it was arraigning? The Court’s response is to imagine that release on bail could take so long that the DNA results are returned in time, or perhaps that bail could be revoked if the DNA test turned up incriminating information. Ante, at 16–17. That is no answer at all. If the purpose of this Act is to assess “whether [King] should be released on bail,” ante, at 15, why would it possibly forbid the DNA testing process to begin until King was arraigned? Why would Maryland resign itself to simply hoping that the bail decision will drag out long enough that the “identification” can succeed before the arrestee is released? The truth, known to Maryland and increasingly to the reader: this search had nothing to do with establishing King’s identity.

It gets worse. King’s DNA sample was not received by the Maryland State Police’s Forensic Sciences Division until April 23, 2009—two weeks after his arrest. It sat in that office, ripening in a storage area, until the custodians got around to mailing it to a lab for testing on June 25, 2009—two months after it was received, and nearly three since King’s arrest. After it was mailed, the data from the lab tests were not available for several more weeks, until July 13, 2009, which is when the test results were entered into Maryland’s DNA database, together with information identifying the person from whom the sample was taken . Meanwhile, bail had been set, King had engaged in discovery, and he had requested a speedy trial—presumably not a trial of John Doe. It was not until August 4, 2009—four months after King’s arrest—that the forwarded sample transmitted ( without identifying information) from the Maryland DNA database to the Federal Bureau of Investigation’s national database was matched with a sample taken from the scene of an unrelated crime years earlier.

A more specific description of exactly what happened at this point illustrates why, by definition, King could not have been identified by this match. The FBI’s DNA database (known as CODIS) consists of two distinct collections. FBI, CODIS and NDIS Fact Sheet, http:// www.fbi.gov/about-us/lab/codis/codis-and-ndis-fact-sheet (all Internet materials as visited May 31, 2013, and available in Clerk of Court’s case file). One of them, the one to which King’s DNA was submitted, consists of DNA samples taken from known convicts or arrestees. I will refer to this as the “Convict and Arrestee Collection.” The other collection consists of samples taken from crime scenes; I will refer to this as the “Unsolved Crimes Collection.” The Convict and Arrestee Collection stores “no names or other personal identifiers of the offenders, arrestees, or detainees.” Ibid. Rather, it contains only the DNA profile itself, the name of the agency that submitted it, the laboratory personnel who analyzed it, and an identification number for the specimen. Ibid. This is because the submitting state laboratories are expected already to know the identities of the convicts and arrestees from whom samples are taken. (And, of course, they do.)

Moreover, the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Ar restee Collection. Ibid. That is sensible, if what one wants to do is solve those cold cases, but note what it requires: that the identity of the people whose DNA has been entered in the Convict and Arrestee Collection already be known . 2 If one wanted to identify someone in custody using his DNA, the logical thing to do would be to compare that DNA against the Convict and Arrestee Collection: to search, in other words, the collection that could be used (by checking back with the submitting state agency) to identify people, rather than the collection of evidence from unsolved crimes, whose perpetrators are by definition unknown. But that is not what was done. And that is because this search had nothing to do with identification.

In fact, if anything was “identified” at the moment that the DNA database returned a match, it was not King—his identity was already known. (The docket for the original criminal charges lists his full name, his race, his sex, his height, his weight, his date of birth, and his address.) Rather, what the August 4 match “identified” was the previously-taken sample from the earlier crime . That sample was genuinely mysterious to Maryland; the State knew that it had probably been left by the victim’s attacker, but nothing else. King was not identified by his association with the sample; rather, the sample was identified by its association with King. The Court effectively destroys its own “identification” theory when it acknowledges that the object of this search was “to see what [was] already known about [King].” King was who he was, and

volumes of his biography could not make him any more or any less King. No minimally competent speaker of English would say, upon noticing a known arrestee’s similarity “to a wanted poster of a previously unidentified suspect,” ante, at 13, that the arrestee had thereby been identified. It was the previously unidentified suspect who had been identified—just as, here, it was the previously unidentified rapist.

That taking DNA samples from arrestees has nothing to do with identifying them is confirmed not just by actual practice (which the Court ignores) but by the enabling statute itself (which the Court also ignores). The Maryland Act at issue has a section helpfully entitled “Purpose of collecting and testing DNA samples.” Md. Pub. Saf. Code Ann. §2–505. (One would expect such a section to play a somewhat larger role in the Court’s analysis of the Act’s purpose—which is to say, at least some role.) That provision lists five purposes for which DNA samples may be tested. By this point, it will not surprise the reader to learn that the Court’s imagined purpose is not among them.

Instead, the law provides that DNA samples are collected and tested, as a matter of Maryland law, “as part of an official investigation into a crime.” §2–505(a)(2). (Or, as our suspicionless-search cases would put it: for ordinary law-enforcement purposes.) That is certainly how everyone has always understood the Maryland Act until today. The Governor of Maryland, in commenting on our decision to hear this case, said that he was glad, because “[a]llowing law enforcement to collect DNA samples . . . is absolutely critical to our efforts to continue driving down crime,” and “bolsters our efforts to resolve open investigations and bring them to a resolution.” Marbella, Supreme Court Will Review Md . DNA Law, Baltimore Sun, Nov. 10, 2012, pp. 1, 14. The attorney general of Maryland remarked that he “look[ed] forward to the opportunity to defend this important crime-fighting tool,” and praised the DNA database for helping to “bring to justice violent perpetrators.” Ibid. Even this Court’s order staying the decision below states that the statute “provides a valuable tool for investigating unsolved crimes and thereby helping to remove violent offenders from the general population”—with, unsurprisingly, no mention of identity. 567 U. S. ___, ___ (2012) ( Roberts , C. J., in chambers) (slip op., at 3).

More devastating still for the Court’s “identification” theory, the statute does enumerate two instances in which a DNA sample may be tested for the purpose of identification: “to help identify human remains ,” §2–505(a)(3) (emphasis added), and “to help identify missing individuals ,” §2–505(a)(4) (emphasis added). No mention of identifying arrestees. Inclusio unius est exclusio alterius . And note again that Maryland forbids using DNA records “for any purposes other than those specified”—it is actually a crime to do so. §2–505(b)(2).

The Maryland regulations implementing the Act confirm what is now monotonously obvious: These DNA searches have nothing to do with identification. For example, if someone is arrested and law enforcement determines that “a convicted offender Statewide DNA Data Base sample already exists” for that arrestee, “the agency is not required to obtain a new sample.” Code of Md. Regs., tit. 29, §05.01.04(B)(4) (2011). But how could the State know if an arrestee has already had his DNA sample collected, if the point of the sample is to identify who he is? Of course, if the DNA sample is instead taken in order to investigate crimes, this restriction makes perfect sense: Having previously placed an identified someone’s DNA on file to check against available crime-scene evidence, there is no sense in going to the expense of taking a new sample. Maryland’s regulations further require that the “individ- ual collecting a sample . . . verify the identity of the individual from whom a sample is taken by name and, if applicable, State identification (SID) number.” §05.01.04(K). (But how?) And after the sample is taken, it continues to be identified by the individual’s name, fingerprints, etc., see §05.01.07(B)—rather than (as the Court believes) being used to identify individuals. See §05.01.07(B)(2) (“Records and specimen information shall be identified by . . . [the] [n]ame of the donor” (emphasis added)).

So, to review: DNA testing does not even begin until after arraignment and bail decisions are already made. The samples sit in storage for months, and take weeks to test. When they are tested, they are checked against the Unsolved Crimes Collection—rather than the Convict and Arrestee Collection, which could be used to identify them. The Act forbids the Court’s purpose (identification), but prescribes as its purpose what our suspicionless-search cases forbid (“official investigation into a crime”). Against all of that, it is safe to say that if the Court’s identification theory is not wrong, there is no such thing as error.

The Court also attempts to bolster its identification theory with a series of inapposite analogies. See ante, at 18–23.

Is not taking DNA samples the same, asks the Court, as taking a person’s photograph? No—because that is not a Fourth Amendment search at all. It does not involve a physical intrusion onto the person, see Florida v. Jardines , 569 U. S. 1 , ___ (2013) (slip op., at 3), and we have never held that merely taking a person’s photograph invades any recognized “expectation of privacy,” see Katz v. United States , 389 U. S. 347 (1967) . Thus, it is unsurprising that the cases the Court cites as authorizing photo- taking do not even mention the Fourth Amendment . See State ex rel. Bruns v. Clausmier , 154 Ind. 599, 57 N. E. 541 (1900) (libel), Shaffer v. United States , 24 App. D. C. 417 (1904) ( Fifth Amendment privilege against self-incrimination).

But is not the practice of DNA searches, the Court asks, the same as taking “Bertillon” measurements—noting an arrestee’s height, shoe size, and so on, on the back of a photograph? No, because that system was not, in the ordinary case, used to solve unsolved crimes. It is possible, I suppose, to imagine situations in which such measurements might be useful to generate leads. (If witnesses described a very tall burglar, all the “tall man” cards could then be pulled.) But the obvious primary purpose of such measurements, as the Court’s description of them makes clear, was to verify that, for example, the person arrested today is the same person that was arrested a year ago. Which is to say, Bertillon measurements were actually used as a system of identification, and drew their primary usefulness from that task. 3

It is on the fingerprinting of arrestees, however, that the Court relies most heavily. Ante, at 20–23. The Court does not actually say whether it believes that taking a person’s fingerprints is a Fourth Amendment search, and our cases provide no ready answer to that question. Even assuming so, however, law enforcement’s post-arrest use of fingerprints could not be more different from its post-arrest use of DNA. Fingerprints of arrestees are taken primarily to identify them (though that process sometimes solves

crimes); the DNA of arrestees is taken to solve crimes (and nothing else). Contrast CODIS, the FBI’s nationwide DNA database, with IAFIS, the FBI’s Integrated Automated Fingerprint Identification System. See FBI, Integrated Automated Fingerprint Identification System, http://www.fbi.gov/about-us/cjis/fingerprints_biometrics/iafis/iafis (hereinafter IAFIS ).

Fingerprints

DNA Samples

The “average response time for an electronic criminal fingerprint submission is about 27 minutes.” IAFIS .

DNA analysis can take months—far too long to be useful for identifying someone.

IAFIS includes detailed identification information, including “criminal histories; mug shots; scars and tattoo photos; physical characteristics like height, weight, and hair and eye color.”

CODIS contains “[n]o names or other personal identifiers of the offenders, arrestees, or detainees.” See CODIS and NDIS Fact Sheet.

“Latent prints” recovered from crime scenes are not systematically compared against the database of known fingerprints, since that requires further forensic work. 4

The entire point of the DNA database is to check crime scene evidence against the profiles of arrestees and convicts as they come in.

The Court asserts that the taking of fingerprints was “constitutional for generations prior to the introduction” of the FBI’s rapid computer-matching system. Ante, at 22. This bold statement is bereft of citation to authority because there is none for it. The “great expansion in fingerprinting came before the modern era of Fourth Amendment jurisprudence,” and so we were never asked to decide the legitimacy of the practice. United States v. Kincade , 379 F. 3d 813 , 874 (CA9 2004) (Kozinski, J., dissenting). As fingerprint databases expanded from convicted criminals, to arrestees, to civil servants, to immigrants, to everyone with a driver’s license, Americans simply “became accustomed to having our fingerprints on file in some government database.” Ibid. But it is wrong to suggest that this was uncontroversial at the time, or that this Court blessed universal fingerprinting for “generations” before it was possible to use it effectively for identification.

The Court also assures us that “the delay in processing DNA from arrestees is being reduced to a substantial degree by rapid technical advances.” Ante, at 22. The idea, presumably, is that the snail’s pace in this case is atypical, so that DNA is now readily usable for identification. The Court’s proof, however, is nothing but a pair of press releases—each of which turns out to undercut this argument. We learn in them that reductions in backlog have enabled Ohio and Louisiana crime labs to analyze a submitted DNA sample in twenty days. 5 But that is still longer than the eighteen days that Maryland needed to analyze King’s sample, once it worked its way through the State’s labyrinthine bureaucracy. What this illustrates is that these times do not take into account the many other sources of delay. So if the Court means to suggest that Maryland is unusual, that may be right—it may qualify in this context as a paragon of efficiency. (Indeed, the Governor of Maryland was hailing the elimination of that State’s backlog more than five years ago. See Wheeler, O’Malley Wants to Expand DNA Testing, Baltimore Sun, Jan. 11, 2008, p. 5B.) Meanwhile, the Court’s holding will result in the dumping of a large number of arrestee samples—many from minor offenders—onto an already overburdened system: Nearly one-third of Americans will be arrested for some offense by age 23. See Brame, Turner, Paternoster, & Bushway, Cumulative Prevalence of Arrest From Ages 8 to 23 in a National Sample, 129 Pediatrics 21 (2011).

The Court also accepts uncritically the Government’s representation at oral argument that it is developing devices that will be able to test DNA in mere minutes. At most, this demonstrates that it may one day be possible to design a program that uses DNA for a purpose other than crime-solving—not that Maryland has in fact designed such a program today. And that is the main point, which the Court’s discussion of the brave new world of instant DNA analysis should not obscure. The issue before us is not whether DNA can some day be used for identification; nor even whether it can today be used for identification; but whether it was used for identification here.

Today, it can fairly be said that fingerprints really are used to identify people—so well, in fact, that there would

be no need for the expense of a separate, wholly redundant DNA confirmation of the same information. What DNA adds—what makes it a valuable weapon in the law-enforcement arsenal—is the ability to solve unsolved crimes, by matching old crime-scene evidence against the profiles of people whose identities are already known. That is what was going on when King’s DNA was taken, and we should not disguise the fact. 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.

The Court disguises the vast (and scary) scope of its holding by promising a limitation it cannot deliver. The Court repeatedly says that DNA testing, and entry into a national DNA registry, will not befall thee and me, dear reader, but only those arrested for “serious offense[s].” Ante, at 28; see also ante, at 1, 9, 14, 17, 22, 23, 24 (repeatedly limiting the analysis to “serious offenses”). I cannot imagine what principle could possibly justify this limitation, and the Court does not attempt to suggest any. If one believes that DNA will “identify” someone arrested for assault, he must believe that it will “identify” someone arrested for a traffic offense. This Court does not base its judgments on senseless distinctions. At the end of the day, logic will out. When there comes before us the taking of DNA from an arrestee for a traffic violation, the Court will predictably (and quite rightly) say, “We can find no significant difference between this case and King .” Make no mistake about it: As an entirely predictable consequence of today’s decision, your DNA can be taken and entered into a national DNA database if you are ever arrested, rightly or wrongly, and for whatever reason.

The most regrettable aspect of the suspicionless search that occurred here is that it proved to be quite unnecessary. All parties concede that it would have been entirely permissible, as far as the Fourth Amendment is concerned, for Maryland to take a sample of King’s DNA as a consequence of his conviction for second-degree assault. So the ironic result of the Court’s error is this: The only arrestees to whom the outcome here will ever make a difference are those who have been acquitted of the crime of arrest (so that their DNA could not have been taken upon conviction). In other words, this Act manages to burden uniquely the sole group for whom the Fourth Amendment ’s protections ought to be most jealously guarded: people who are innocent of the State’s accusations.

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, 6 will some day be repudiated.

1 The Court’s insistence ( ante, at 25) that our special-needs cases “do not have a direct bearing on the issues presented in this case” is perplexing. Why spill so much ink on the special need of identification if a special need is not required? Why not just come out and say that any suspicionless search of an arrestee is allowed if it will be useful to solve crimes? The Court does not say that because most Members of the Court do not believe it. So whatever the Court’s major premise—the opinion does not really contain what you would call a rule of decision—the minor premise is “this search was used to identify King.” The incorrectness of that minor premise will therefore suffice to demonstrate the error in the Court’s result.

2 By the way, this procedure has nothing to do with exonerating the wrongfully convicted, as the Court soothingly promises. See ante, at 17. The FBI CODIS database includes DNA from unsolved crimes. I know of no indication (and the Court cites none) that it also includes DNA from all—or even any—crimes whose perpetrators have already been convicted.

3 Puzzlingly, the Court’s discussion of photography and Bertillon measurements repeatedly cites state cases (such as Clausmier ) that were decided before the Fourth Amendment was held to be applicable to the States. See Wolf v. Colorado , 338 U. S. 25 (1949) ; Mapp v. Ohio , 367 U. S. 643 (1961) . Why the Court believes them relevant to the meaning of that Amendment is therefore something of a mystery.

4 See, e.g., FBI, Privacy Impact Assessment: Integrated Automated Fingerprint Identification System (IAFIS)/Next Generation Identification (NGI) Repository for Individuals of Special Concern (RISC), http://www.fbi.gov/foia/privacy-impact-assessments/iafis-ngi-risc (searches of the “Unsolved Latent File” may “take considerably more time”).

5 See Attorney General DeWine Announces Significant Drop in DNA Turnaround Time (Jan. 4, 2013), http://ohioattorneygeneral.gov/ Media/News-Releases/January-2013/Attorney-General-DeWine-Announces- Significant-Drop; Gov. Jindal Announces Elimination of DNA Backlog (Nov. 17, 2011), http://www.gov.state.la.us/index.cfm?md=newsroom& tmp=detail&articleID=3102.

6 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).

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TikTok challenges U.S. ban in court, calling it unconstitutional

Bobby Allyn

TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a new buyer, or face a nationwide ban. Kiichiro Sato/AP hide caption

TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a new buyer, or face a nationwide ban.

TikTok and its parent company on Tuesday filed a legal challenge against the United States over a law that President Biden signed last month outlawing the app nationwide unless it finds a buyer within a year.

In the petition filed in the Court of Appeals for the District of Columbia Circuit, the company said the legislation exceeds the bounds of the constitution and suppresses the speech of millions of Americans.

"Banning TikTok is so obviously unconstitutional, in fact, that even the Act's sponsors recognized that reality, and therefore have tried mightily to depict the law not as a ban at all, but merely a regulation of TikTok's ownership," according to the filing.

The law, passed through Congress at lightning speed, which caught many inside TikTok off guard, is intended to force TikTok to be sold to a non-Chinese company in nine months, with the possibility of a three month extension if a possible sale is in play.

Yet lawyers for TikTok say the law offers the company a false choice, since fully divesting from its parent company, ByteDance, is "simply not possible: not commercially, not technologically, not legally," the challenge states. "And certainly not on the 270-day timeline required by the Act."

Anupam Chander, a law professor at Georgetown University who specializes in technology regulations, said if TikTok loses this legal fight, it will likely shut down in the U.S.

"The problem for TikTok is that they have a parent company that has these obligation in China, but they're trying to live by free speech rules by the United States," Chander said in an interview. "The question is whether American courts will believe that that's even possible."

TikTok says law based on "speculative and analytically flawed concerns"

Lawmakers in Washington have long been suspicious of TikTok, fearing its Chinese owner could use the popular app to spy on Americans or spread dangerous disinformation.

But in the company's legal petition, lawyers for TikTok say invoking "national security" does not give the government a free pass to violate the First Amendment, especially, TikTok, argues, when no public evidence has been presented of the Chinese government using the app as a weapon against Americans.

Possible TikTok ban could be 'an extinction-level event' for the creator economy

According to the filing, the law is based on "speculative and analytically flawed concerns about data security and content manipulation — concerns that, even if grounded in fact, could be addressed through far less restrictive and more narrowly tailored means."

New DOJ Filing: TikTok's Owner Is 'A Mouthpiece' Of Chinese Communist Party

Constitutional scholars say there are few ways for the government to restrict speech in a way that would survive a legal challenge. One of those ways is if the government can demonstrate a national security risk. Also key, legal experts say, is the government showing the speech suppression was the least restrictive option on the table.

TikTok said Congress ignored less restrictive ways of addressing the government's national security concerns.

"If Congress can do this, it can circumvent the First Amendment by invoking national security and ordering the publisher of any individual newspaper or website to sell to avoid being shut down," the filing states. "And for TikTok, any such divestiture would disconnect Americans from the rest of the global community."

Since more than 90% of TikTok's users are outside of America, Georgetown's Chander said selling the U.S.-based app to a different owner would cannibalize its own business.

"You can't really create a TikTok U.S., while having a different company manage TikTok Canada," Chander said in an interview. "What you're doing essentially is creating a rival between two TikToks," he said. " It may be better to take your marbles out of the United States and hope to make money outside of the U.S., rather than sell it at a fire-sale price."

TikTok critics call app a 'spy balloon on your phone'

The filing sets off what could be the most important battle for TikTok. It has been fending off legal challenges to its existence since former President Trump first sought to ban the app through an executive order in the summer of 2020. That effort was blocked by federal courts.

Since then, Democrats and Republicans have shown a rare moment of unity around calls to pressure TikTok to sever its ties with ByteDance, the Beijing-based tech giant that owns the video-streaming app.

Trump's Ban On TikTok Suffers Another Legal Setback

Congress has never before passed legislation that could outright ban a wildly popular social media app, a gesture the U.S. government has criticized authoritarian nations for doing.

In the case of TikTok, however, lawmakers have called the app a "spy balloon on your phone," emphasizing how the Chinese government could gain access to the personal data of U.S. citizens.

Worries also persist in Washington that Beijing could influence the views of Americans by dictating what videos are boosted on the platform. That concern has only become heightened seven months before a presidential election.

Yet the fears so far indeed remain hypothetical.

There is no publicly available example of the Chinese government attempting to use TikTok as an espionage or data collection tool. And no proof that the Chinese government has ever had a hand over what TikTok's 170 million American users see every day on the app.

TikTok says it offers U.S. a plan that would shut app down if it violated agreement

TikTok, for its part, says it has invested $2 billion on a plan, dubbed Project Texas, to separate its U.S. operation from its Chinese parent company. It deleted all of Americans' data from foreign servers and relocated all of the data to servers on U.S. soil overseen by the Austin-based tech company Oracle.

While the plan was intended to build trust with U.S. lawmakers and users, reports surfaced showing that data was still moving between staff in California and Beijing.

In the filing on Tuesday, TikTok said it submitted an agreement to the Committee on Foreign Investment in the United States, which has been probing the app for five years, that would allow the U.S. to suspend TikTok if it violated terms set forth in a national security plan.

But, lawyers for TikTok say, the deal was swept aside, "in favor of the politically expedient and punitive approach," the petition states.

Mnuchin claims he will place a bid to buy TikTok, even though app is not for sale

Despite the new law giving TikTok the ultimatum of selling or being shut down, there are many questions around how the app could even be bought by another company or group of investors.

Former Treasury Secretary Steven Mnuchin told NPR on Monday, he is planning to assemble a group of investors to try to purchase TikTok without the app's algorithm.

Mnuchin, who declined to answer additional questions, said in between sessions at the Milken Institute Global Conference in Los Angeles that the proposal to buy the app is still in the works, but he would not say when it would be formally submitted.

One major obstacle in any possible sale of TikTok is a glaring problem: The app is not for sale.

TikTok Ban Averted: Trump Gives Oracle-Walmart Deal His 'Blessing'

Despite the new law in the U.S., ByteDance says it does not intend to let go of the service. Furthermore, winning the support of China would be necessary, and officials in Beijing are adamantly against any forced sale.

In 2020, amid the Trump administration's clamp down on the app, China added "content-recommendation algorithms" to its export-control list, effectively adding new regulations over how TikTok's all-powerful algorithm could ever be sold.

ByteDance, not TikTok, developed and controls the algorithm that determines what millions see on the app every day. The technology has become the envy of Silicon Valley, and no U.S. tech company has been able dislodge TikTok's firm hold on the short-form video market. Experts say key to its success is its highly engaging and hyper-personalized video-ranking algorithm.

The algorithm, which involves millions of lines of software code developed by thousands of engineers over many years, cannot be easily transferred to the U.S., even if China did allow it, TikTok's challenge states.

Lawyers for TikTok argue that "any severance [of the algorithm] would leave TikTok without access to the recommendation engine that has created a unique style and community that cannot be replicated on any other platform today."

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Persuasive Essay On The Fourth Amendment
Persuasive Essay On The Fourth Amendment. The San Bernardino shooting was a tragic event. A cell phone recovered after the shooting has been collected as evidence. Law enforcement believes that unlocking the phone which is an iPhone would help them learn more about the attack and plans. They also believe that this would allow them to intercept ...
Argumentative Essay: Is Technology Testing The Fourth Amendment?
The Fourth Amendment is "the right of the people to be secure in their persons.". In addition, the law enforcement only needs to be "supported by a probable cause" or an "arrest warrant," to search a United States citizen. Although, the police officer could arrest a suspect to stop them from running away or to preserve evidence.
TikTok sues U.S. ban in court, says it violates the first amendment
TikTok challenges U.S. ban in court, says it violates the first amendment. TikTok's suit is in response to a law passed by Congress giving ByteDance up to a year to divest from TikTok and find a ...