A Fourth Amendment Problem for the Homeless: A Comment to “Police Are Tearing Down One of the Nation’s Largest Homeless Camps”
March 9, 2015 by bmc85
by David Garcia-Pedrosa
[This piece is in response to the article Police Are Tearing Down One of the Nation’s Largest Homeless Camps, available here.]
The tearing down of the Silicon Valley homeless encampment is only one example of a nation-wide epidemic of evicting homeless people from their tents and hand-made shelters. The Government’s destruction of these “tent cities” raises many concerns for the homeless. One such concern is homeless persons’ Fourth Amendment right “to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” The attached article is a step away from affording Fourth Amendment protection to homeless persons in their dwellings.
A brief insight into the Supreme Court’s Fourth Amendment jurisprudence is instructive.
The Court began by declaring that a “search” for purposes of the Fourth Amendment was limited to situations where the government physically entered a place it had no legal right to be, or in other words, conducted a physical trespass of property. Thus, physical trespass was determinative of whether a government conduct constituted a search. Conversely, when government action did not constitute a trespass or property, the conduct was held not to be a Fourth Amendment search. In Olmstead v. United States, the police listened to the defendant’s home phone conversations from a telephone box outside his home. The Court held that the police’s conduct was not a search under the Fourth Amendment because there was no physical trespass onto the defendant’s property.
The Court continued to use this property- and trespass-based approach until Katz v. United States. The facts in Katz strikingly resemble those in Olmstead. In Katz, the Court declared that a search had taken place when the government used an electronic listening device to listen to a telephone conversation made by the defendant, who had entered a public telephone booth, closed the door behind him, and made a telephone call. The Court in Katz established that there could be a search under the Fourth Amendment without a physical trespass because the Fourth Amendment protected “people not places.” The Katz decision created the reasonable expectation of privacy test to determine whether a search had taken place under the Fourth Amendment. Under the two-pronged reasonable expectation of privacy test, a search has taken place if (1) the government conduct offends the citizen’s subjective manifestation of a privacy interest, and (2) the privacy interest invaded is one that society is prepared to recognize as reasonable.
From 1967—when Katz was decided—until 2012, it was common knowledge that Katz had overruled Olmstead, and courts proceeded to determine whether a Fourth Amendment search had occurred based on the reasonable expectation of privacy test. Indeed, in illustrating how to cite when one case is overruled by a subsequent case, the The Bluebook uses the following example: “Olmstead v. United States, 227 U.S. 438 (1928), overruled by Katz v. United States, 389 U.S. 347 (1967) . . . .” Nonetheless, in United States v. Jones, the Court resurrected the physical trespass to property doctrine, and proclaimed that Katz did not overrule Olmstead. Instead, according to the Jones Court, Katz’s reasonable expectation of privacy test added to Olmstead’s trespass of property doctrine. The four-Justice plurality in Katz used Olmstead to find that a GPS placed on the defendant’s Jeep was a search under the Fourth Amendment because the placement of the GPS was a physical trespass. In her concurrence, Justice Sotomayor agreed with the plurality that a search had been conducted under Olmstead, but also noted that a search had taken place under Katz because the defendant did not have a reasonable expectation of privacy in his wife’s Jeep, which the defendant drove on public streets. Thus, Jones stands for the proposition that, in determining whether a Fourth Amendment search has occurred, courts can use either Olmstead’s trespass to property test or Katz’s reasonable expectation of privacy test. Accordingly, both tests must be analyzed to determine Fourth Amendment protection of the homeless.
The trespass to property test provides little, if any, Fourth Amendment protection for the homeless. Indeed, the residents of the Silicon Valley homeless encampment—and other tent cities throughout the country—do not own the land in which they live. Even worse, many homeless persons in tent cities are themselves living on government property.
At first glance, Katz seems to be a step in the right direction for Fourth Amendment protection of the homeless. Again, under Olmstead—which relied on trespass to property to determine if a search had occurred—persons in the Silicon Valley homeless encampment, and others in text cities around the country, would have no Fourth Amendment protection because the land on which they are living is government property.
The level of Fourth Amendment protection for the homeless turns on Katz second prong: Whether society is prepared to recognize homeless persons’ privacy interests as reasonable. On few occasions, courts have held that people have a reasonable expectation of privacy in temporary homes. For example, in Kelley v. State, the Georgia Court of Appeals found that the defendant was entitled to fourth amendment protection in the tent in which he lived. The court in Kelley focused on the privacy interests of the individual, rather than the particular structure. However, in Amezquita v. Hernandez-Colon, the First Circuit held that squatters do not have a reasonable expectation of privacy in their temporary homes built on government property. The court noted that the squatters were trespassers, had no legal right to occupy the land, and had been asked by the local government to leave the area.
To be sure, the members of the Silicon Valley homeless encampment more resemble the squatters in Amezquita than the defendants in Kelley. However, in the post-Katz world, courts must determine whether society is prepared to recognize homeless persons’ privacy interests as reasonable. Such a determination is fluid: While this analysis takes stare decisis into consideration, it is not determinative because a time may come when society does indeed recognize homeless persons’ privacy interests as reasonable. The article posted—and the aforementioned nation-wide epidemic of evicting homeless persons from their tents and hand-made shelters—is a seemingly clear indication that society does not yet recognize such interests as reasonable.
 See e.g., Blake Ellis, Camden shuts down its tent cities, CNN Money (May 14, 2014, 1:18 PM), http://money.cnn.com/2014/05/14/pf/camden-homeless-tent-cities/; Marc Thompson, North Camp homeless find more permanent home, WoodTv.com (June 8, 2014, 5:27 PM), http://woodtv.com/2014/06/07/north-camp-vacated-torn-down/; Dianna Penner and Kristine Gurrera, Police make arrests as city workers tear down homeless camp at railroad bridge, IndyStar (Aug. 26, 2013, 4:17 PM), http://www.indystar.com/story/news/2013/08/25/police-make-arrests-as-city-workers-tear-down-homeless-camp-at-railroad-bridge/2697287/.
 U.S. Const. amend. IV.
 Boyd v. United States, 116 U.S. 616, 627 (1886) (“[I]t is now incumbent upon the defendants to show the law by which this seizure is warranted. If that cannot be done, it is a trespass.”).
 277 U.S. 438 (1928).
 Id. at 466.
 389 U.S. 347 (1967).
 See id. at 348–49, 352–53.
 Id. at 351.
 See id. at 361 (Harlan, J., concurring).
 See id.
 See e.g., United States v. Chadwick, 433 U.S. 1, 7 (1977) (“[T]he Fourth Amendment protects people, not places; more particularly, it protects people from unreasonable government intrusions into their reasonable expectations of privacy.”); California v. Greenwood 486 U.S. 35 (1988) (holding that the defendant had no reasonable expectation of privacy in garbage bags placed outside the property for garbage pickup).
 The Bluebook: A Uniform System of Citation R. 10.7.1(c)(i), at 102 (Columbia Law Review Ass’n et al. eds., 19th ed. 2010).
 132 S. Ct. 945 (2012).
 Id. at 952 (“[T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.”).
 Id. at 949.
 Id. at 954–57 (Sotomayor, J., concurring).
 245 S.E.2d 872, 874–75 (1978).
 518 F.2d 8, 12 (1st Cir. 1975), cert. denied, 424 U.S. 916 (1976).
 Id. at 9–10.