Amicus Curiae Brief — Daphne Moore, Petitioner v. United States

No. 22-481

In The

Supreme Court of the United States

DAPHNE MOORE,

v.

UNITED STATES OF AMERICA,

Petitioner,

Respondent.

On Petition for a Writ of Certiorari to the United

States Court of Appeals for the First Circuit

BRIEF OF INSTITUTE FOR JUSTICE AS

AMICUS CURIAE IN SUPPORT OF

PETITIONER

JOSHUA WINDHAM

Counsel of Record

ROBERT FROMMER

CHRISTIAN LANSINGER

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.

Suite 900

Arlington, VA 22201

(703) 682-9320

jwindham@ij.org

Counsel for Amicus Curiae

i

QUESTION PRESENTED

Whether long-term police use of a surveillance

camera targeted at a person’s home and curtilage is a

Fourth Amendment search.

ii

TABLE OF CONTENTS

PAGE

TABLE OF AUTHORITIES ..................................... iii

QUESTION PRESENTED ........................................ 1

INTEREST OF AMICUS CURIAE ........................... 1

SUMMARY OF ARGUMENT.................................... 2

ARGUMENT .............................................................. 3

I.

The Government Used a Pole Camera to

Search for Evidence ....................................... 3

II.

Courts Are Confused About Pole Cameras

Because Katz Elevates Irrelevant Details

Over the Government’s Investigative Purpose ................................................................ 5

III. This Court Should Grant the Petition to

Adopt a Test that Focuses on the Government’s Investigative Purpose........................ 9

A. This Court’s Recent Decisions Pave the

Way for a Purpose-Based Test ................ 9

B. A Purpose-Based Test Would Honor

the Fourth Amendment’s Text and

History .................................................... 12

C. Adopting a Test that Focuses on the

Government’s Purpose Would Allow

the Court to Engage in Real Constitutional Scrutiny ....................................... 14

CONCLUSION ......................................................... 16

iii

TABLE OF AUTHORITIES

PAGE

Cases

California v. Ciraolo,

476 U.S. 207 (1986) ............................................ 6–7

Caniglia v. Strom,

141 S. Ct. 1596 (2021) ............................................ 2

Carpenter v. United States,

138 S. Ct. 2206 (2018) ......... 2, 4, 6–7, 10–11, 13–15

Collins v. Virginia,

138 S. Ct. 1663 (2018) ............................................ 2

Florida v. Jardines,

569 U.S. 1 (2013) .................................................. 12

Florida v. Riley,

488 U.S. 445 (1989) ................................................ 6

Johnson v. United States,

333 U.S. 10 (1948) ................................................ 15

Katz v. United States,

389 U.S. 347 (1967) ............... 2, 3, 5, 6, 8–13, 15–16

Kyllo v. United States,

533 U.S. 27 (2001) ................... 2, 5, 6, 10–11, 13–14

Lange v. California,

141 S. Ct. 2011 (2021) ............................................ 1

LMP Servs., Inc. v. City of Chicago,

160 N.E.3d 822 (Ill. 2019) ...................................... 1

iv

Long Lake Twp. v. Maxon,

No. 349230, 2022 WL 4281509 (Mich. Ct. App.

Sept. 15, 2022) ........................................................ 1

Morgan v. Fairfield County,

903 F.3d 553 (6th Cir. 2018) ........................ 3, 4, 13

Olmstead v. United States,

277 U.S. 438 (1928) ................................................ 5

Rainwaters v. Tenn. Wildlife Res. Agency,

No. 20-CV-6, 2022 WL 17491794 (Tenn. Cir. Ct.

Mar. 22, 2022) ..................................................... 1–2

Riley v. California,

573 U.S. 373 (2014) ............................................ 2, 6

State v. Wright,

961 N.W.2d 396 (Iowa 2021) ................................ 13

Tuggle v. United States,

142 S. Ct. 1107 (2022) ........................................ 1, 6

United States v. Carloss,

818 F.3d 988 (10th Cir. 2016) .............................. 12

United States v. Cuevas-Sanchez,

821 F.2d 248 (5th Cir. 1987) .................................. 8

United States v. Houston,

813 F.3d 282 (6th Cir. 2016) .............................. 6, 8

United States v. Jackson,

213 F.3d 1269 (10th Cir. 2000) .............................. 8

United States v. James Daniel Good Real Prop.,

510 U.S. 43 (1993) .................................................. 1

United States v. Jones,

565 U.S. 400 (2012) .....................6–7, 10–11, 13–14

v

United States v. Knotts,

460 U.S. 276 (1983) ................................................ 9

United States v. Moore-Bush,

36 F.4th 320 (1st Cir. 2022) ..................2, 3, 6–8, 11

United States v. Trice,

966 F.3d 506 (6th Cir. 2020) .................................. 7

United States v. Tuggle,

4 F.4th 505 (7th Cir. 2021) ................................. 6–9

United States v. Vankesteren,

553 F.3d 286 (4th Cir. 2009) .................................. 8

Other Authorities

Electronic Frontier Foundation, Atlas of Surveillance, https://atlasofsurveillance.org/atlas

(updated Sept. 28, 2022) .................................... 8–9

Jeffrey Bellin, Fourth Amendment Textualism,

118 Mich. L. Rev. 233 (2019) .................................. 9

Laura Donohue, The Original Fourth Amendment,

83 U. Chi. L. Rev. 1181 (2016). ............................ 15

Luke Milligan, The Forgotten Right to Be Secure,

65 Hastings L.J. 713 (2014) ................................. 15

Nathan Bailey, An Etymological English

Dictionary (22d ed. 1770) ..................................... 13

Noah Webster, An Universal American Dictionary

of the English Language 66 (1828) (reprint 6th

ed. 1989) ................................................................ 13

vi

Richard Posner, The Uncertain Protection of

Privacy by the Supreme Court, 1979 Sup. Ct.

Rev. 173................................................................... 9

William Baude & James Stern, The Positive Law

Model of the Fourth Amendment, 129 Harv. L.

Rev. 1821 (2016) ..................................................... 9

1

INTEREST OF AMICUS CURIAE

The Institute for Justice (IJ) 1 is a nonprofit, public-interest law firm committed to securing the foundations of a free society by defending constitutional

rights. A central pillar of IJ’s mission is the protection

of private property rights, both because the ability to

control one’s property is an essential component of individual liberty and because property rights are

bound up with all other civil rights. See United States

v. James Daniel Good Real Prop., 510 U.S. 43, 61

(1993) (“Individual freedom finds tangible expression

in property rights.”).

To that end, IJ challenges warrantless government surveillance of people and their property. See,

e.g., Long Lake Twp. v. Maxon, No. 349230, 2022 WL

4281509 (Mich. Ct. App. Sept. 15, 2022), appeal filed,

No. 164948 (Mich. Oct. 27, 2022) (challenging warrantless drone surveillance); LMP Servs., Inc. v. City

of Chicago, 160 N.E.3d 822 (Ill.), cert. denied, 140 S.

Ct. 468 (2019) (challenging warrantless GPS tracking); Rainwaters v. Tenn. Wildlife Res. Agency, No. 20CV-6, 2022 WL 17491794 (Tenn. Cir. Ct. Mar. 22,

2022) (challenging warrantless patrols of farmland).

IJ also regularly files amicus briefs in Fourth Amendment cases before this Court. See, e.g., Tuggle v.

United States, 142 S. Ct. 1107 (2022); Caniglia v.

Strom, 141 S. Ct. 1596 (2021); Lange v. California,

141 S. Ct. 2011 (2021); Collins v. Virginia, 138 S. Ct.

1 Amicus affirms that both parties received timely notice and

have consented to the filing of this brief, no attorney for either

party authored this brief in whole or in part, and no person or

entity other than Amicus made a monetary contribution specifically for the preparation or submission of this brief.

2

1663 (2018); Carpenter v. United States, 138 S. Ct.

2206 (2018); Riley v. California, 573 U.S. 373 (2014).

SUMMARY OF ARGUMENT

When ATF agents pointed a camera at Moore’s

home for eight months, they were searching for evidence. Most Americans would not think twice about

that. Nor did Chief Judge Barron, who observed that

the “camera was specifically placed so as to ‘reveal location information’ pertaining to specific individuals

for law enforcement’s investigative purposes.” United

States v. Moore-Bush, 36 F.4th 320, 353 (1st Cir.

2022) (en banc) (Barron, C.J., concurring) (quoting

Carpenter v. United States, 138 S. Ct. 2206, 2220

(2018)).

The fact that the agents pointed the camera at

Moore’s home to look for evidence should have ended

the First Circuit’s “search” analysis. But under Katz

v. United States, 389 U.S. 347 (1967), courts are forced

to look at other details, like what technology the government used and how Americans view it, that have

no bearing on whether the government is searching.

This exercise “[i]n assessing when a search is not a

search,” Kyllo v. United States, 533 U.S. 27, 32 (2001),

has produced needless confusion that will only grow

with the rise of the surveillance state and changing

social expectations about technology.

There is a simple solution: Return to Americans’

common understanding of what it means to “search.”

Since the Founding, “search” has meant “a purposeful, investigative act (and nothing more).” Morgan v.

Fairfield County, 903 F.3d 553, 568 (6th Cir. 2018)

3

(Thapar, J., concurring and dissenting). By refocusing

on the government’s investigative purpose, this Court

can resolve lower courts’ confusion on the threshold

question and pave the way for more substantive analyses of whether searches are “reasonable.”

Amicus proceeds in three parts. Section I names a

basic truth: The government here used a pole camera

to search for evidence. Section II explains the problem: Katz forces courts to focus on details that have

nothing to do with whether the government is searching. Section III offers the solution: This Court should

replace Katz with an intuitive test that focuses on the

government’s investigative purpose.

ARGUMENT

I.

The Government Used a Pole Camera to

Search for Evidence.

Start with what the ATF agents actually did. They

pointed a pole camera at Moore’s home and used it to

spy on her for eight months. The camera recorded her

comings and goings, her activities, and her routines,

every minute of every day. At a common sense level,

most Americans would say the agents were searching

for something. And they would be right: The agents

were looking for information they could use to prosecute Moore’s daughter. Chief Judge Barron agreed,

noting the “camera was specifically placed so as to ‘reveal location information’ pertaining to specific individuals for law enforcement’s investigative purposes.”

United States v. Moore-Bush, 36 F.4th 320, 353 (1st

Cir. 2022) (en banc) (Barron, C.J., concurring)

4

(quoting Carpenter v. United States, 138 S. Ct. 2206,

2220 (2018)).

That should have ended the First Circuit’s analysis of the “search” question. But the dueling concurrences instead spent over a hundred pages discussing

whether the camera violated a reasonable expectation

of privacy. They considered the camera’s height, cost,

and zooming, panning, and playback abilities. Id. at

322–23, 348, 372. They parsed the amount of privacy

a reasonable person could expect in Moore’s shoes.

They considered factors like fencing, the distance between nearby homes, the nosiness of neighbors, and

how many doorbell cameras exist in society. Id. at 330

n.10, 331 n.11, 336–37, 369, 372. Yet, despite all that

analysis, the court split evenly on whether a “search”

occurred.

The First Circuit’s struggle shows the intractable

problems with the “reasonable expectation of privacy”

test. It is circular, unintuitive, and overly malleable.

Worse, its entire approach is contrary to the ordinary

meaning of the word “search”—“a purposeful, investigative act.” Morgan v. Fairfield County, 903 F.3d 553,

568 (6th Cir. 2018) (Thapar, J., concurring and dissenting). Had the First Circuit employed the ordinary

meaning “search,” it would have reached the same

conclusion as most Americans: Pointing a pole camera

at Moore’s home to gather evidence was a search.

5

II. Courts Are Confused About Pole Cameras

Because Katz Elevates Irrelevant Details

Over the Government’s Investigative Purpose.

Though the definition of “search” has not changed

since the Founding, this Court’s approach has. Until

Katz, the Court held that a physical trespass was required for a search to occur. See Katz v. United States,

389 U.S. 347, 352 (1967) (citing Olmstead v. United

States, 277 U.S. 438 (1928)). But over time, technological advances made it possible for the government to

spy on people without physically entering their property. At its best, Katz’s “reasonable expectation of privacy” test was an attempt to ensure the government

could not evade Fourth Amendment scrutiny by using

technology to do what it could previously only do in

person. See Kyllo v. United States, 533 U.S. 27, 34–35

(2001).

Yet Katz has shown that it is not up to the task of

protecting core Fourth Amendment rights in the digital age. Katz requires courts to abandon the intuitive

definition of “search,” which focuses on whether the

government has directed a purposeful investigative

act toward a person or her property, and instead focuses the inquiry on what technology the government

used and how society views it. See Katz, 389 U.S. at

361 (Harlan, J., concurring).

While these details may bear on whether a search

is “reasonable,” infra 15–16, they are irrelevant to the

threshold question: What is a “search?” Regardless,

the lower courts are required to gather and parse

these details at the start of the analysis. Borrowing

6

from this Court, they ask all sorts of questions about

the technology, including:

•

How high or far away is the technology?2

•

How long is the technology spying? 3

•

How common or expensive is it? 4

•

Is the data real-time or historical? 5

2 Compare California v. Ciraolo, 476 U.S. 207, 215 (1986) (no

search because plane 1,000 feet in the air was in public navigable

airspace), and Florida v. Riley, 488 U.S. 445, 451 (1989) (no

search because helicopter below public navigable airspace was

still lawful), with United States v. Houston, 813 F.3d 282, 288–

89 (6th Cir. 2016) (considering whether view from top of a pole

is the same as view from bottom).

3 Compare United States v. Jones, 565 U.S. 400, 430 (2012) (Alito,

J., concurring) (“We need not identify with precision the point at

which the tracking of this vehicle became a search, for the line

was surely crossed before the 4-week mark. Other cases may present more difficult questions.”), and Carpenter, 138 S. Ct. at

2266–67 (Gorsuch, J., dissenting) (questioning the line-drawing

Katz demands regarding duration), with United States v. Tuggle,

4 F.4th 505, 526 (7th Cir. 2021) (“How much pole camera surveillance is too much? Most might agree that eighteen months

(roughly 554 days) is questionable, but what about 250 days? 100

days? 20 days? 1 day?”), cert. denied, 142 S. Ct. 1107 (2022).

4 Compare Carpenter, 138 S. Ct. at 2220 (limiting holding to unconventional surveillance tools), and Kyllo, 533 U.S. at 40 (no

search because thermal-imaging devices are not in “general public use”), with Moore-Bush, 36 F.4th at 372 (Lynch, J., concurring) (“A basic model of [a] doorbell security camera can be purchased for just $51.99.”)

5 Compare Carpenter, 138 S. Ct. at 2218, 2220 (limiting holding

to historical cell-site location information), and Riley v. California, 573 U.S. 373, 395–96 (2014) (explaining that cell phone data

is different in part because of its historical aspects), with Tuggle,

4 F.4th at 525 (“By the logic of Riley and Carpenter . . . the pole

7

•

Is there anything blocking the technology

from seeing the property? 6

•

How comprehensive is the surveillance? 7

•

Does the technology see more than the average nosy neighbor? 8

camera surveillance here did not run afoul of the Fourth Amendment because the government could not ‘travel back in time to

retrace [Tuggle’s] whereabouts.’”)

6 Compare Ciraolo, 476 U.S. at 211–12 (“Yet a 10-foot fence

might not shield these plants from the eyes of a citizen or a policeman perched on the top of a truck or a two-level bus. Whether

respondent therefore manifested a subjective expectation of privacy from all observations of his backyard . . . is not entirely

clear in these circumstances.”), with Tuggle, 4 F.4th at 513

(“Nothing in the record suggests that Tuggle erected any fences

or otherwise tried to shield his yard or driveway from public

view, which might have signaled he feared the wandering eye or

camera lens on the street. We therefore do not confront the more

challenging situation in which the government intentionally

places cameras to see over a fence . . . .”), and Moore-Bush, 36

F.4th at 331 n.11, 369 (disagreement between two concurring

opinions of the need for a fence or obstruction).

7 Compare Carpenter, 138 S. Ct. at 2218 (cell phones present

unique privacy concerns because they can “achieve[] near perfect

surveillance”), with Tuggle, 4 F.4th at 524 (“Of course, the stationary cameras placed around Tuggle’s house captured an important sliver of Tuggle’s life, but they did not paint the type of

exhaustive picture of his every movement that the Supreme

Court has frowned upon. If the facts and concurrences

of Jones and Carpenter set the benchmarks, then the surveillance in this case pales in comparison.”), and United States v.

Trice, 966 F.3d 506, 519 (6th Cir. 2020), cert. denied, 141 S. Ct.

1395 (2021) (distinguishing Carpenter because motion-sensor

pole cameras record only brief video segments).

8 Compare Carpenter, 138 S. Ct. at 2219 (contrasting a nosy

neighbor’s memory and a cell phone’s storage), with Moore-Bush,

8

Forcing courts to parse so many details about how

the government is searching distracts from the fact

that matters most: that the government is searching.

From wiretapping, to thermal sensors, to GPS tracking, to cellphone data, the government has always

used the latest technology to look for evidence. The

fact that these technologies change over time, or that

Americans’ views on them evolve from one generation

to the next, does not change the fact that the government is using them to search.

Until Katz is addressed, lower courts will continue

to elevate these irrelevant details for every new technology. That’s true now for pole cameras: Courts cannot agree on whether pointing cameras at houses to

spy on people is a search because they are focused on

the red-herring details surveyed above. 9 And, as the

Seventh Circuit recently noted, Katz ensures courts

will remain confused about new technologies for years

to come: “Today’s pole cameras will be tomorrow’s

body cameras, ‘protracted location tracking using [automated license plate readers],’ drones, facial recognition, Internet-of-Things and smart devices, and so

much more that we cannot even begin to envision.”

Tuggle, 4 F.4th at 527–28; see also Electronic Frontier

Foundation, Atlas of Surveillance, https://atlasof

36 F.4th at 330 n.10, 336–37 (disagreement between concurring

opinions about how much a nosy neighbor could observe).

9 See Tuggle, 4 F.4th at 516–17, 525 (not a search); Houston, 813

F.3d at 287–88 (not a search); United States v. Vankesteren, 553

F.3d 286, 291 (4th Cir. 2009) (not a search); United States v.

Jackson, 213 F.3d 1269, 1280–81 (10th Cir. 2000) (not a search),

judgment vacated on other grounds, 531 U.S. 1033 (2000);

United States v. Cuevas-Sanchez, 821 F.2d 248, 251 (5th Cir.

1987) (yes, search).

9

surveillance.org/atlas (updated Sept. 28, 2022) (mapping government use of surveillance technologies).

That’s why the Seventh Circuit wrote—and Amicus agrees—that the time has come for this Court “to

revisit the Fourth Amendment test established in

Katz.” Tuggle, 4 F.4th at 528.

III. This Court Should Grant the Petition to

Adopt a Test that Focuses on the Government’s Investigative Purpose.

Forty years ago, this Court noted that it may consider “whether different constitutional principles may

be applicable” if “twenty-four hour surveillance of any

citizen of this country [were] possible.” United States

v. Knotts, 460 U.S. 276, 283–84 (1983). That surveillance is now possible. The Court should grant review

to replace Katz with an intuitive, technologically neutral test that focuses on the government’s investigative purpose.

A. This Court’s Recent Decisions Pave the

Way for a Purpose-Based Test.

Start with Katz’s chorus of critics. Legal scholars

have long criticized Katz as circular, unintuitive, and

overly malleable. See, e.g., Jeffrey Bellin, Fourth

Amendment Textualism, 118 Mich. L. Rev. 233, 251–

53 (2019); William Baude & James Stern, The Positive Law Model of the Fourth Amendment, 129 Harv.

L. Rev. 1821, 1888 (2016); Richard Posner, The Uncertain Protection of Privacy by the Supreme Court,

1979 Sup. Ct. Rev. 173, 188.

10

Hearing the criticism, this Court and several justices have signaled that it may be time for a new test.

See, e.g., Kyllo, 533 U.S. at 34 (“[Katz] has often been

criticized as circular, and hence subjective and unpredictable.”); Jones, 565 U.S. at 427 (Alito, J., concurring) (“[Katz] involves a degree of circularity, and

judges are apt to confuse their own expectations of

privacy with those of the hypothetical reasonable person to which the Katz test looks.” (cites omitted)); Carpenter, 138 S. Ct. at 2266 (Gorsuch, J., dissenting)

(noting “Katz has yielded an often unpredictable—

and sometimes unbelievable—jurisprudence”); id. at

2244 (Thomas, J., dissenting) (similar).

The Court has already made moves in that direction, though without addressing the elephant in the

room. Multiple recent decisions have either (1) purported to apply Katz while rejecting a “mechanical interpretation,” or (2) avoided Katz altogether by taking

a trespass-based approach. In both types of cases, the

Court has dodged Katz when it would have produced

the absurd result that a purposeful, investigative government act was not a “search.”

Take Kyllo, where the Court held that applying

Katz as written “would leave the homeowner at the

mercy of advancing technology.” 533 U.S. at 35. To

avoid this outcome, the Court rejected a “mechanical

interpretation” that distinguishes “off-the-wall” and

“through-the-wall surveillance.” Id. Though this was

a “distinction of constitutional magnitude” under

Katz’s public-exposure doctrine, Id. at 41 (Stevens, J.,

dissenting), the result would have belied the government’s investigative purpose.

11

In Carpenter, the Court similarly rejected a “mechanical interpretation” of Katz’s third-party doctrine

to historical cell-site location information. 138 S. Ct.

at 2214 (quoting Kyllo, 533 U.S. at 35). The Court

noted that its narrow holding did not “address other

business records that might incidentally reveal location information.” Id. at 2220 (emphasis added). That

is, the Court suggested there may be a difference between information gathered incidentally and information gathered purposefully. Chief Judge Barron

highlighted this focus on the government’s investigative purpose in his opinion below:

[Carpenter] suggests that even if the pole camera in question here could . . . be viewed as a

“security camera” or “business record,” the

camera, as here used, is not of that kind. This

camera was specifically placed so as to ‘reveal

location information’ pertaining to specific individuals for law enforcement’s investigative

purposes . . . . There is nothing “incidental”

about the “location information” regarding the

home . . . .

Moore-Bush, 36 F.4th at 353 (Barron, C.J., concurring) (quoting Carpenter, 138 S. Ct. at 2220).

When the Court has applied the “trespass” test, its

focus on the government’s investigative purpose has

been even clearer. In Jones, the Court held that a trespass “is neither necessary nor sufficient to establish a

constitutional violation.” 565 U.S. at 408 n.5 (cleaned

up). Rather, the government action, whether a trespass, invasion of privacy, or other purposeful act,

12

must involve “an attempt to find something or obtain

information.” Id.

The Court held the same in Florida v. Jardines, a

case involving the warrantless use of a drug-sniffing

dog on someone’s porch. 569 U.S. 1, 3–4 (2013). There,

the Court noted that whether the government conducts a search “depends upon the purpose for which

they entered.” Id. at 10. Because the officers’ “behavior objectively reveal[ed] a purpose” to “gather information,” the agents had conducted a search. Id. at 7,

10. Notably, it did not matter whether the officers

used a drug dog or some other method to search, because “[i]t is not the dog that is the problem, but the

behavior that here involved use of the dog.” 10 Id. at 9

n.3. Applying that logic here: It is not the pole camera,

but the ATF agents’ investigative purpose in using

the camera, that makes their spying a search.

In sum, this Court has increasingly departed from

Katz by focusing on the government’s investigative

purpose. The Court should continue that trend here—

and do it explicitly.

B. A Purpose-Based Test Would Honor the

Fourth Amendment’s Text and History.

There is a simpler, more intuitive path than the

one Katz paved. As Justice Thomas and Judge Thapar

have explained, “search” was not a legal term of art at

10 Then-Judge Gorsuch discussed the Court’s focus on investiga-

tive purpose while on the Tenth Circuit, distinguishing between

an officer trespassing to return a lost dog from one trespassing

to look for criminal evidence. See United States v. Carloss, 818

F.3d 988, 1004 (10th Cir. 2016) (Gorsuch, J., dissenting).

13

the Founding, nor was there any real debate over its

meaning. Carpenter, 138 S. Ct. at 2238 (Thomas, J.,

dissenting); Morgan, 903 F.3d at 568 (Thapar, J., concurring and dissenting). So, both judges looked to the

term’s ordinary meaning at the time the Fourth

Amendment was adopted. Id. Citing several Founding-era dictionaries, they came to the same conclusion: a “search” is a purposeful, investigative act. See,

e.g., Carpenter, 138 S. Ct. at 2238 (citing Nathan Bailey, An Universal Etymological English Dictionary

(22d ed. 1770) (“a seeking after, a looking for, & c.”));

Morgan, 903 F.3d at 568 (quoting Noah Webster, An

American Dictionary of the English Language 66

(1828) (reprint 6th ed. 1989) (“To 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.”)).

Last year, the Iowa Supreme Court took the same

approach and abandoned Katz under Iowa’s (identical) search-and-seizure provision. State v. Wright, 961

N.W.2d 396, 414 (Iowa 2021). In its place, the Court

held that a search occurs when the government “attempt[s] to find something or to obtain information.”

Id. at 413–14 (quoting Jones, 565 U.S. at 408 n.5).

This Court should do the same. Doing so would resolve the “search” issue in this case with far less ink

than the First Circuit spilled. In fact, Justice Scalia

said as much in Kyllo: There, he noted that if the

Court were to apply the ordinary definition of search

from “[w]hen the Fourth Amendment was adopted,”

then “examining the portion of a house that is in plain

public view . . . is a ‘search.’” Kyllo, 533 U.S. at 32 &

14

n.1 (citing Webster, supra). That is what the ATF

agents did to Moore’s house with their pole camera.

C. Adopting a Test that Focuses on the Government’s Purpose Would Allow the Court

to Engage in Real Constitutional Scrutiny.

If this Court were to adopt a test that focuses on

the government’s investigative purpose, fewer cases

would turn on the Fourth Amendment’s threshold inquiry and more cases would turn on the merits: Was

the search constitutionally “reasonable”?

As it stands, many cutting-edge surveillance cases

that reach this Court do so only on the threshold question of whether the Fourth Amendment applies at all.

See, e.g., Carpenter, 138 S. Ct. at 2211 (whether accessing historical cell-site location information was a

search); Jones, 565 U.S. at 430 (whether placing a

GPS tracker on car was a search); Kyllo, 533 U.S. at

34 (whether pointing a thermal-imaging device at a

home was a search). As a result, the Court often fails

to offer guidance on how to decide whether the government’s use of new surveillance technologies violates the Fourth Amendment. See Carpenter, 138 S.

Ct. at 2266 (Gorsuch, J., dissenting) (noting that the

Court’s holding that a search occurred “supplies little

. . . direction” for how to resolve future cases).

Simplifying the “search” inquiry by focusing on the

government’s investigative purpose would give this

Court more opportunities to provide that guidance.

Of course, even if this Court were to adopt such a

test, the final outcome in many cases would be the

15

same. For example, a search would remain a search

even after a person consents to it. (After all, if a person allows police into her home to look for drugs and

guns, what else is she consenting to if not a “search”?)

Consent would just make the search reasonable.

Other cases might require a more nuanced reasonableness analysis based on questions like: Did the

search violate the “right to be secure”? See Luke Milligan, The Forgotten Right to Be Secure, 65 Hastings

L.J. 713, 741–46 (2014). Did the search violate “the

reason of the common law”? See Laura Donohue, The

Original Fourth Amendment, 83 U. Chi. L. Rev. 1181,

1269–76 (2016). Was a warrant required? See Johnson v. United States, 333 U.S. 10, 14 (1948) (lack of a

warrant requirement “would reduce the Amendment

to a nullity and leave the people’s homes secure only

in the discretion of police officers”).

Answering these “reasonableness” questions may

even require courts to consider certain details about

the technology—including those surveyed in Section

II—that are currently part of the Katz “search” analysis. For example, in pole-camera cases, courts may

still want to know whether the camera “achieves near

perfect surveillance,” Carpenter, 138 S. Ct. at 2218,

when deciding whether the search was “reasonable.”

However that analysis would work, though, Amicus’s

point is that adopting a simpler “search” test would

give courts more opportunities to flesh out Fourth

Amendment “reasonableness” in cases involving new

surveillance technologies.

*

*

*

16

Under an intuitive test that focuses on the government’s investigative purpose, the First Circuit would

have reached the same conclusion as most Americans:

The agents used a camera to gather evidence as part

of a criminal investigation. That was a “search,” and

this Court should say as much.

This approach honors the Fourth Amendment’s

text and history, and it would allow the First Circuit

and its sister circuits to apply real constitutional scrutiny rather than focus on irrelevant details. The Court

should grant certiorari to do what scholars, judges,

and the Court’s recent decisions suggest: revisit Katz.

CONCLUSION

This Court should grant the petition and replace

Katz with an intuitive test that focuses on the government’s investigative purpose.

Respectfully submitted,

JOSHUA WINDHAM

Counsel of Record

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.

Ste. 900

Arlington, VA 22201

(703) 682-9320

jwindham@ij.org

ROBERT FROMMER

CHRISTIAN LANSINGER

INSTITUTE FOR JUSTICE

901 N. Glebe Rd.

Ste. 900

Arlington, VA 22201

rfrommer@ij.org

clansinger@ij.org

Counsel for Amicus Curiae

December 22, 2022