Volume 55
Issue 1
Winter '18

Collective Standing Under the Fourth Amendment

Written By: David Gray

Abstract

 

The Supreme Court’s landmark decision in Katz v. United States1 changed the direction of Fourth Amendment law. There, the Court redefined “searches” as government actions that violate subjectively manifested expectations of privacy “that society is prepared to recognize as ‘reasonable.’”2 Although perceived as progressive at the time, this reasonable expectation of privacy test3 has done significant violence to “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . . . .”4 Some of these wounds have been inflicted by the public observation doctrine5 and the third party doctrine,6 which together immunize a wide variety of government searches from Fourth Amendment scrutiny because they do not—in the Supreme Court’s view, at least—constitute “searches” at all.7 In recent years new and emerging surveillance technologies have exploited these doctrinal rules to a dramatic degree, facilitating a variety of programs that engage in broad and indiscriminate searches,8 subjecting each of us and all of us to the constant threat of searches based on bad reasons, insufficient reasons, or no particular reasons at all.9 Despite those threats, Katz places these programs outside the scope of Fourth Amendment regulation because the means and methods of searching employed are not considered “searches.”10

The problems following in the wake of the public observation and third party doctrines have been explored in depth by academics, critics, and the courts.11 By contrast, rules governing Fourth Amendment standing that developed in the wake of Katz have largely escaped sustained critique.12 That is unfortunate. These rules have set artificial constraints on who can challenge government searches; the ability of individuals and groups to challenge searches and seizures at the programmatic level; the kinds of evidence deemed relevant in Fourth Amendment cases; and the types of remedies litigants can pursue. These limits have had particularly deleterious effects on efforts to challenge racial bias in search and seizure practices, including stop and frisk programs and use of force protocols.13 This Article seeks to document some of the damage and to chart a way forward.

Part I describes the current state of affairs in government searches and seizures with a focus on stop and frisk practices. Recent investigations by the Department of Justice along with publicly available data show that stop and frisk programs demonstrably threaten the right of the people to be secure against unreasonable searches and seizures. Much of that threat is focused on perfectly innocent and law-abiding members of minority groups and the poor, too many of whom are subjected daily to the threat of being stopped and frisked. Part II provides a brief primer on the law of Fourth Amendment standing, which allows challenges only to individual instances of government action by those who have suffered a personal violation of their subjectively manifested and reasonable expectations of privacy. Part III explains how the rules governing Fourth Amendment standing have hamstrung the ability of the people to challenge unreasonable search and seizure practices by limiting who can sue, what evidence they can offer, and what remedies they can seek. Part IV outlines an alternative approach that takes seriously the collective dimensions of Fourth Amendment rights, which, after all, are guaranteed to “the people.” Recognizing the collective nature of Fourth Amendment rights affords broad standing for any member of “the people” to seek prospective remedies sufficient to guarantee for everyone the right to be secure against unreasonable searches and seizures.

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1. 389 U.S. 347 (1967).

2. Id. at 361 (Harlan, J., concurring). Although this two-pronged test appears in Justice Harlan’s concurrence,
the Court soon adopted his formulation as its own. See, e.g., Smith v. Maryland, 442 U.S. 735, 740–41 (1979).

3. Although the Harlan test formally has two prongs, as Orin Kerr has pointed out, the Katz doctrine is best
understood by focusing on the second prong. See Orin S. Kerr, Katz Has Only One Step: The Irrelevance of
Subjective Expectations, 82 U. CHI. L. REV. 113 (2015).

4. U.S. CONST. amend. IV. For an extended analysis of this point, see DAVID GRAY, THE FOURTH AMENDMENT IN
AN AGE OF SURVEILLANCE 68–103 (2017).

5. The public observation doctrine holds that individuals do not have a reasonable expectation of privacy in
anything exposed to public view. Applying this doctrine, the Supreme Court has granted an unfettered license for
government agents to make observations from any lawful vantage. See GRAY, supra note 4, at 78–84 (explaining
the public observation doctrine and its consequences); see also Florida v. Riley, 488 U.S. 445, 451 (1989) (looking
into a greenhouse located on private property through open roof panels from a helicopter in public airspace is not a
search); California v. Ciraolo, 476 U.S. 207, 215 (1986) (looking into a fenced backyard from an airplane
operating in public airspace is not a search); Dow Chem. Co. v. United States, 476 U.S. 227, 239 (1986) (using a
powerful telescope to look down from public airspace is not a search); United States v. Knotts, 460 U.S. 276, 285
(1983) (using a beeper tracking device to monitor a suspect’s public movements is not a search).

6. The third party doctrine holds that individuals do not have a reasonable expectation of privacy in
information shared with third parties, at least where government agents gain access to that information through
the third party. See GRAY, supra note 4, at 84–89 (explaining the third-party doctrine and its consequences); see
also Smith, 442 U.S. at 746 (using a pen register device to gather non-content information relating to telephone
calls is not a search); Cal. Bankers Ass’n v. Shultz, 416 U.S. 21, 54 (1974) (subpoenaing of banking records is not
a search); United States v. White, 401 U.S. 745, 751 (1971) (using a body wire worn by an undercover officer to
record conversations is not a search); Hoffa v. United States, 385 U.S. 293, 302 (1966) (using an informant to
report on private conversation is not a search); Lopez v. United States, 373 U.S. 427, 440 (1963) (carrying of
electronic recording device by Internal Revenue agent did not violate defendant’s constitutional rights).

7. See Smith, 442 U.S.735; Shultz, 416 U.S. 21; White, 401 U.S. 745; Hoffa, 385 U.S. 293; Lopez, 373 U.S.
427.

8. See GRAY, supra note 4, at 23–67 (documenting and discussing a range of contemporary surveillance
technologies and programs including the Section 215 telephonic metadata surveillance program administered by
the National Security Agency and the Federal Bureau of Investigation).

9. See id.

10. Id. at 78–89 (discussing the doctrinal and practical consequences of the third party and public observation
doctrines).

11. See, e.g., United States v. Jones, 565 U.S. 400, 414–18 (2012) (Sotomayor, J., concurring); Stephen E.
Henderson, The Timely Demise of the Fourth Amendment Third Party Doctrine, 96 IOWA L. REV. BULL. 39 (2011).
But see Orin S. Kerr, The Case for the Third-Party Doctrine, 107 MICH. L. REV. 561 (2009) (defending the third
party doctrine).

12. There was a spate of student notes decrying the Court’s opinions in United States v. Salvucci, 448 U.S. 83
(1980) and Rakas v. Illinois, 439 U.S. 128 (1978), but interest quickly faded. Two notable recent exceptions to this
dearth of scholarly interest are Christopher Slobogin, Standing and Covert Surveillance, 42 PEPP. L. REV. 517
(2015) and Nadia B. Soree, Whose Fourth Amendment and Does It Matter? A Due Process Approach to Fourth
Amendment Standing, 46 IND. L. REV. 753 (2013).

13. See infra Part III.