Amicus Curiae Brief — James Harper, Petitioner v. Michael Faulkender, Acting Commissioner of Internal Revenue Service, et al.

No. 24-922

IN THE

Supreme Court of the United States

_________________________________________________

JAMES HARPER,

Petitioner,

v.

DOUGLAS O’DONNELL, IN HIS OFFICIAL CAPACITY AS

ACTING COMMISSIONER OF THE INTERNAL REVENUE

SERVICE, et al.

Respondents.

_________________________________________________

ON PETITION FOR A WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE FIRST CIRCUIT

_________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Cynthia Fleming Crawford

Counsel of Record

Lee A. Steven

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-2227

(571) 329-1716

ccrawford@afphq.org

lsteven@afphq.org

Counsel for Amicus Curiae

March 28, 2025

QUESTION PRESENTED

Does the Fourth Amendment permit warrantless searches of customer records held by third-party

service providers if the records are contractually

owned by the customer, or if those records enable surveillance of future behavior? If not, does the thirdparty doctrine need to be discarded or modified to prevent such searches?

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TABLE OF CONTENTS

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

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

SUMMARY OF ARGUMENT ..............................................1

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

I.

THE FOURTH AMENDMENT IS A SHIELD

AGAINST THE UNBRIDLED, ARBITRARY

EXERCISE OF THE POLICE POWER. .......................3

A. The Fourth Amendment protects

against the invasion of people and

their property. ..........................................4

B. A physical intrusion without probable

cause or a particularized warrant

violates the Fourth Amendment. ............7

II.

THE LOWER COURTS’ FAILURE TO

UNDERSTAND AND APPLY THE CORE

PROPERTY-BASED APPROACH TO FOURTH

AMENDMENT JURISPRUDENCE JUSTIFIES A

GRANT OF CERTIORARI IN THIS CASE. ................ 13

CONCLUSION ............................................................... 18

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Boyd v. United States,

116 U.S. 616 (1886) ...................................... 8–9, 10

Byrd v. United States,

584 U.S. 395 (2018) ............................................ 4, 6

Carpenter v. United States,

585 U.S. 296 (2018) ................ 3, 5, 8, 10, 15, 16–18

Dunaway v. New York

442 U.S. 200 (1979) .............................................. 13

Entick v. Carrington,

95 Eng. Rep. 807 (C.P. 1765).................................. 7

Florida v. Jardines

569 U.S. 1 (2013) ................................................ 5–6

Henry v. United States

361 U.S. 98 (1959) .......................................... 10–11

Katz v. United States,

389 U.S. 347 (1967) ................................................ 4

Payton v. New York,

445 U.S. 573 (1980) ................................................ 8

Riley v. California,

573 U.S. 373 (2014) ................................................ 9

Smith v. Maryland,

442 U.S. 735 (1979) ................................................ 4

Soldal v. Cook Cty., 506 U.S. 56 (1992) ......................... 3, 6

iii

Stanford v. Texas,

379 U.S. 476 (1964) ................................ 7–8, 11–12

Terry v. Ohio,

392 U.S. 1 (1968) ............................................ 12, 13

United States v. Jones

565 U.S. 400 (2012) ............................ 5, 6, 7, 11, 17

United States v. Knotts,

460 U.S. 276 (1983) ................................................ 6

United States v. Miller,

425 U.S. 435 (1976) .............................. 4, 15–16, 17

Other Authorities

26 U.S.C. §§ 7609(f), 7609(h)(2) ............................... 2

3 Joseph Story,

Commentaries on the Constitution of the United

States § 1895 (1833) ................................................ 9

James Otis,

Against Writs of Assistance (1761) ......................... 8

U.S. Const., amend. IV .................................................... 3, 4

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BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.2, Americans for

Prosperity Foundation (“AFPF”) respectfully submits

this amicus curiae brief in support of Petitioner. 1

INTEREST OF AMICUS CURIAE

Amicus curiae AFPF is a 501(c)(3) nonprofit organization committed to educating and training Americans to be courageous advocates for the ideas, principles, and policies of a free and open society. Those key

ideas include the freedoms and rights protected by the

Fourth Amendment to the United States Constitution, including in particular the freedom from unreasonable searches and seizures as understood by the

original framers of the amendment. As part of its mission, AFPF appears as amicus curiae before federal

and state courts.

AFPF is committed to defending the constitutional

principles of liberty enshrined in the Bill of Rights. It

believes all Americans should be shielded from the arbitrary exercise of the police power, a principle directly implicated in the present case.

SUMMARY OF ARGUMENT

Our Founding Fathers crafted the Fourth Amendment specifically to outlaw and guard against the use

of general warrants and writs of assistance, instruments used by the British Crown throughout the

1 All parties received timely notice of AFPF’s intent to file this

amicus curiae brief. No counsel for a party authored this brief in

whole or in part and no person other than amicus curiae or its

counsel made any monetary contributions intended to fund the

preparation or submission of this brief.

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homeland and in the Colonies in the decades leading

up to the Revolutionary War. Yet the Internal Revenue Service (“IRS”) “John Doe” summons at issue in

this case, whose propriety both lower courts upheld,

stands in the exact same position as the hated general

warrant and writ of assistance. The summons is an

instrument used by the IRS to compel a third party to

surrender information about individuals who are not

even known to the IRS and whose conduct the IRS has

no probable cause to suspect of wrongdoing. The summons in this case, generally authorized under 26

U.S.C. §§ 7609(f) and 7609(h)(2), did not identify the

Petitioner Mr. Harper by name, nor did it concern a

particularized allegation that Mr. Harper had engaged in criminal activity, was likely to be involved in

criminal activity, or that he was suspected of any

wrongdoing. Indeed, the summons was not even directed at Mr. Harper individually but was worded so

generally that it swept into its purview 14,355 individuals encompassing 8.9 million financial transactions on the cryptocurrency exchange Coinbase.

Consequently, Mr. Harper’s private financial records, which did not demonstrate any tax delinquency

or other wrongdoing, were included in the records that

Coinbase ultimately turned over to the IRS. Mr. Harper owned a possessory interest in those records. As

applied to Mr. Harper, the execution of the IRS summons violated Mr. Harper’s constitutional rights under the property and trespass approach to Fourth

Amendment jurisprudence now firmly reestablished

by Supreme Court precedent. The lower courts failed

to apply the Court’s reinvigorated Fourth Amendment

jurisprudence and certiorari should be granted to

right that wrong, explain the need of the federal

courts to properly analyze the property interests at

stake in Fourth Amendment cases, and to vindicate

2

the Founding era’s conviction that general warrants

and writs of assistance, or their modern day equivalents, have no place in a land of a free people.

ARGUMENT

I. THE FOURTH AMENDMENT IS A SHIELD AGAINST

THE UNBRIDLED, ARBITRARY EXERCISE OF THE POLICE POWER.

The Fourth Amendment to the U.S. Constitution

lies at the heart of individual liberty, privacy, and the

protection of private property. In full, it provides:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and

particularly describing the place to be searched,

and the persons or things to be seized.

U.S. Const., amend. IV.

The fundamental purpose of the Fourth Amendment is “to secure the privacies of life against arbitrary power . . . [and] to place obstacles in the way of

a too permeating police surveillance.” Carpenter v.

United States, 585 U.S. 296, 305 (2018) (cleaned up);

see Soldal v. Cook Cty., 506 U.S. 56, 69 (1992) (“[T]he

reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold

question whether the Amendment applies. What matters is the intrusion on the people’s security from governmental interference.”).

“Few protections are as essential to individual liberty as the right to be free from unreasonable searches

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and seizures,” this Court affirmed in Byrd v. United

States, stating further that:

The Framers made that right explicit in the Bill of

Rights following their experience with the indignities and invasions of privacy wrought by general

warrants and warrantless searches that had so alienated the colonists and had helped speed the

movement for independence. Ever mindful of the

Fourth Amendment and its history, the Court has

viewed with disfavor practices that permit police

officers unbridled discretion to rummage at will

among a person’s private effects.

584 U.S. 395, 402–03 (2018) (cleaned up). But it is precisely the government’s “unbridled discretion to rummage at will among a person’s private effects,” id.,

that the IRS summons allowed in this case, in violation of Mr. Harper’s constitutional rights.

A. The Fourth Amendment protects against

the invasion of people and their property.

Beginning with Justice Harlan’s concurrence in

Katz v. United States, 389 U.S. 347 (1967), Fourth

Amendment jurisprudence became rooted in the idea

of “reasonable expectations of privacy.” See, e.g.,

United States v. Miller, 425 U.S. 435 (1976); Smith v.

Maryland, 442 U.S. 735 (1979). In the last decade and

more, however, this Court has emphasized that the

proper means to vindicate the text and purpose of the

Fourth Amendment is to return to first principles by

focusing on the Amendment’s common law foundations in trespass and property.

The Fourth Amendment protects the “right of the

people to be secure in their persons, houses, papers,

and effects.” U.S. Const., amend. IV (emphasis added).

That text, explained the Court in United States v.

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Jones, “reflects [the Fourth Amendment’s] close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure

against unreasonable searches and seizures’; the

phrase ‘in their persons, houses, papers, and effects’

would have been superfluous.” 565 U.S. 400, 405

(2012).

As this Court later emphasized, Jones was decided

“based on the Government’s physical trespass of the

vehicle” upon which the FBI had placed a tracker.

Carpenter, 585 U.S. at 307 (emphasis added). Similarly, in Florida v. Jardines, the Court explained that

the Fourth Amendment “establishes a simple baseline, one that for much of our history formed the exclusive basis for its protections: When the Government

obtains information by physically intruding on persons, houses, papers, or effects, a search within the

original meaning of the Fourth Amendment has undoubtedly occurred.” 569 U.S. 1, 5 (2013) (cleaned up

and emphasis added).

Thus, where there is an actual intrusion—on “persons, houses, papers, or effects”—the question of “reasonable expectations of privacy” is not the primary

test to apply in adjudicating claims of Fourth Amendment violations. The reasonable-expectations-of-privacy test is in addition to the core intrusion test contained in the express text of the Amendment. As

Jardines explained: “The Katz reasonable-expectations test has been added to, not substituted for, the

traditional property-based understanding of the

Fourth Amendment, and so is unnecessary to consider

when the government gains evidence by physically intruding on constitutionally protected areas.” 569 U.S.

at 11 (cleaned up); see id. (“Thus, we need not decide

whether the officers’ investigation of Jardines’ home

5

violated his expectation of privacy under Katz. One

virtue of the Fourth Amendment’s property-rights

baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is

enough to establish that a search occurred.”); Jones,

565 U.S. at 406–07 (“Jones’s Fourth Amendment

rights do not rise or fall with the Katz formulation. At

bottom, we must assure preservation of that degree of

privacy against government that existed when the

Fourth Amendment was adopted. As explained, for

most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates. Katz did not repudiate that understanding.”) (cleaned up); id. at 408

(“Katz did not narrow the Fourth Amendment’s

scope.”); Byrd, 584 U.S. at 403 (“[M]ore recent Fourth

Amendment cases have clarified that the test most often associated with legitimate expectations of privacy,

which was derived from the second Justice Harlan’s

concurrence in Katz v. United States, supplements, rather than displaces, the traditional property-based

understanding of the Fourth Amendment.”) (cleaned

up); Soldal, 506 U.S. at 64 (“But the message of those

cases [i.e., those in the line of Katz] is that property

rights are not the sole measure of Fourth Amendment

violations. . . . There was no suggestion that this shift

in emphasis had snuffed out the previously recognized

protection for property under the Fourth Amendment.”); United States v. Knotts, 460 U.S. 276, 286

(1983) (Brennan, J., concurring) (Katz did not erode

the principle “that, when the Government does engage

in physical intrusion of a constitutionally protected

area in order to obtain information, that intrusion

may constitute a violation of the Fourth Amendment

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even if the same information could have been obtained

by other means.”).

B. A physical intrusion without probable

cause or a particularized warrant violates the Fourth Amendment.

To help make the point that the Fourth Amendment is rooted in the common law of property and

trespass, the Jones court quoted Lord Camden’s famous opinion in Entick v. Carrington, 95 Eng. Rep.

807 (C.P. 1765). See 565 U.S at 405. Entick was one of

a series of English cases decided in the mid-1760s that

condemned the use of general warrants that had allowed the seizure of individuals, and all of their books

and papers, based on the allegation of seditious libel

for advocating political views disfavored by the

Crown. And Entick was instrumental in the crafting

of the Fourth Amendment. This Court summarized

that history and context in Stanford v. Texas:

It was in enforcing the laws licensing the publication of literature and, later, in prosecutions for seditious libel that general warrants were systematically used in the sixteenth, seventeenth, and

eighteenth centuries. In Tudor England officers of

the Crown were given roving commissions to

search where they pleased in order to suppress and

destroy the literature of dissent, both Catholic and

Puritan. In later years warrants were sometimes

more specific in content, but they typically authorized the arrest and search of the premises of all

persons connected with the publication of a particular libel, or the arrest and seizure of all the papers

of a named person thought to be connected with a

libel. It was in the context of the latter kinds of

general warrants that the battle for individual

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liberty and privacy was finally won—in the landmark cases of Wilkes v. Wood and Entick v. Carrington.

379 U.S. 476, 482–83 (1964); see Carpenter, 585 U.S.

at 303 (“The Founding generation crafted the Fourth

Amendment as a response to the reviled general warrants and writs of assistance of the colonial era, which

allowed British officers to rummage through homes in

an unrestrained search for evidence of criminal activity.”) (cleaned up); Payton v. New York, 445 U.S. 573,

583 n.21 (1980) (“It is familiar history that indiscriminate searches and seizures conducted under the authority of ‘general warrants’ were the immediate evils

that motivated the framing and adoption of the

Fourth Amendment.”); cf. James Otis, Against Writs

of Assistance (1761) (“Now one of the most essential

branches of English liberty is the freedom of one’s

house. A man’s house is his castle; and whilst he is

quiet, he is as well guarded as a prince in his castle.

This writ, if it should be declared legal, would totally

annihilate this privilege.”).

In Boyd v. United States, this Court quoted the

judgment of Lord Camden in Entick verbatim and at

length. It characterized the case “as one of the landmarks of English liberty,” 116 U.S. 616, 626 (1886),

and further explained its importance to the U.S. Constitution:

[Lord Camden’s judgment] was welcomed and applauded by the lovers of liberty in the colonies as

well as in the mother country. It is regarded as one

of the permanent monuments of the British Constitution, and is quoted as such by the English authorities on that subject down to the present time.

As every American statesmen, during our

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revolutionary and formative period as a nation,

was undoubtedly familiar with this monument of

English freedom, and considered it as the true and

ultimate expression of constitutional law, it may

be confidently asserted that its propositions were

in the minds of those who framed the Fourth

Amendment to the Constitution, and were considered as sufficiently explanatory of what was meant

by unreasonable searches and seizures.

Id. at 626–27; see 3 Joseph Story, Commentaries on

the Constitution of the United States § 1895 (1833) (the

Fourth Amendment “seems indispensable to the full

enjoyment of the rights of personal security, personal

liberty, and private property. It is little more. than the

affirmance of a great constitutional doctrine of the

common law. And its introduction into the amendments was doubtless occasioned by the strong sensibility excited, both in England and America, upon the

subject of general warrants almost upon the eve of the

American Revolution.”); Riley v. California, 573 U.S.

373, 403 (2014) (“Our cases have recognized that the

Fourth Amendment was the founding generation’s response to the reviled ‘general warrants’ and ‘writs of

assistance’ of the colonial era, which allowed British

officers to rummage through homes in an unrestrained search for evidence of criminal activity. Opposition to such searches was in fact one of the driving

forces behind the Revolution itself.”).

In further explaining the relevance of Entick in the

American context, the Boyd court explained that, although the searches and seizures at issue in Entick

had been violent and had caused property damage,

that violence was not the essence of the violation. Rather, it was the physical intrusion of a person and his

property without proper warrant.

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The principles laid down in this opinion affect the

very essence of constitutional liberty and security.

. . . [T]hey apply to all invasions on the part of the

government and its employes [sic] of the sanctity

of a man’s home and the privacies of life. It is not

the breaking of his doors, and the rummaging of

his drawers, that constitutes the essence of the offence; but it is the invasion of his indefeasible right

of personal security, personal liberty and private

property, where that right has never been forfeited

by his conviction of some public offence,—it is the

invasion of this sacred right which underlies and

constitutes the essence of Lord Campden’s judgment.

116 U.S. at 630 (emphasis added); see Carpenter, 585

U.S. at 303 (“The basic purpose of this Amendment,

our cases have recognized, is to safeguard the privacy

and security of individuals against arbitrary invasions by government officials.”) (cleaned up).

In Henry v. United States, this Court articulated

these same principles under the rubric of probable

cause, explaining that a proper warrant to physically

intrude on a person or his property in an attempt to

find information requires more than mere or even

strong suspicion.

The requirement of probable cause has roots that

are deep in our history. The general warrant, in

which the name of the person to be arrested was

left blank, and the writs of assistance, against

which James Otis inveighed, both perpetuated the

oppressive practice of allowing the police to arrest

and search on suspicion. Police control took the

place of judicial control, since no showing of ‘probable cause’ before a magistrate was required. [The

10

colonies] rebelled against that practice . . . [and]

[t]hat philosophy later was reflected in the Fourth

Amendment. And as the early American decisions

both before and immediately after its adoption

show, common rumor or report, suspicion, or even

strong reason to suspect was not adequate to support a warrant for arrest. And that principle has

survived to this day.

361 U.S. 98, 100–01 (1959) (footnotes omitted).

Thus, the meaning of Entick and the numerous

Fourth Amendment cases that have followed in its

line is that government acts illegitimately when, without a proper nexus to an actual crime or alleged

wrongdoing (probable cause) or a properly particularized warrant, it vacuums up an individual’s papers

and effects or otherwise intrudes on an individual or

his property in an attempt to find or secure evidence

not yet in its possession. See Jones, 565 U.S. at 408

n.5 (“[A] seizure of property occurs, not when there is

a trespass, but when there is some meaningful interference with an individual’s possessory interests in

that property. Likewise with a search. Trespass alone

does not qualify, but there must be conjoined with that

what was present here: an attempt to find something

or to obtain information.”) (cleaned up); Henry, 361

U.S. at 100 (“[I]t is the command of the Fourth

Amendment that no warrants for either searches or

arrests shall issue except ‘upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or

things to be seized.”); Stanford, 379 U.S. at 486 (“Two

centuries have passed since the historic decision in

Entick v. Carrington, almost to the very day. The

world has greatly changed, and the voice of nonconformity now sometimes speaks a tongue which Lord

11

Camden might find hard to understand. But the

Fourth and Fourteenth Amendments guarantee to

John Stanford that no official of the State shall ransack his home and seize his books and papers under

the unbridled authority of a general warrant—no less

than the law 200 years ago shielded John Entick from

the messengers of the King.”).

Where a search of a person, his home, or his paper

or effects takes place without probable cause, then,

there is no need to assess whether a plaintiff’s reasonable expectations of privacy have been violated or

whether any other standards are applicable because

the protections identified in the Constitution—the supreme law of this Republic—are immediately applicable. Cf. Henry, 361 U.S. at 102 (“It is important, we

think, that this requirement [of probable cause] be

strictly enforced, for the standard set by the Constitution protects both the officer and the citizen.”); Terry

v. Ohio, 392 U.S. 1, 39 (1968) (Douglas, J., dissenting)

(“Until the Fourth Amendment, which is closely allied

with the Fifth, is rewritten, the person and the effects

of the individual are beyond the reach of all government agencies until there are reasonable grounds to

believe (probable cause) that a criminal venture has

been launched or is about to be launched.”).

To summarize: the Fourth Amendment protections

preclude any intrusion by the government into the

constitutionally protected areas without probable

cause or by general warrant. Mere suspicion, even

strong suspicion, is not enough and all warrants authorizing a search or seizure must issue with particularized descriptions of the persons, places, papers, and

effects to be searched. This Court has reemphasized

these requirements and principles on numerous occasions, including as follows in Dunaway v. New York:

12

The requirement of probable cause has roots that

are deep in our history. Hostility to seizures based

on mere suspicion was a prime motivation for the

adoption of the Fourth Amendment, and decisions

immediately after its adoption affirmed that common rumor or report, suspicion, or even strong reason to suspect was not adequate to support a warrant for arrest. The familiar threshold standard of

probable cause for Fourth Amendment seizures reflects the benefit of extensive experience accommodating the factors relevant to the reasonableness

requirement of the Fourth Amendment, and provides the relative simplicity and clarity necessary

to the implementation of a workable rule.

442 U.S. 200, 213 (1979) (cleaned up); see Terry, 392

U.S. at 37 (Douglas, J., dissenting) (“In other words,

police officers up to today have been permitted to effect arrests or searches without warrants only when

the facts within their personal knowledge would satisfy the constitutional standard of probable cause. . . .

The term ‘probable cause’ rings a bell of certainty that

is not sounded by phrases such as ‘reasonable suspicion.’ Moreover, the meaning of ‘probable cause’ is

deeply imbedded in our constitutional history.”).

II. THE LOWER COURTS’ FAILURE TO UNDERSTAND

AND APPLY THE CORE PROPERTY-BASED APPROACH TO FOURTH AMENDMENT JURISPRUDENCE JUSTIFIES A GRANT OF CERTIORARI IN THIS

CASE.

The above understanding of the Fourth Amendment, rooted in the government’s intrusion of “persons, houses, papers, and effects” in the hopes of discovering incriminating evidence, applies directly to

the instant case. Unfortunately, that approach was

13

neither understood nor properly applied by either of

the lower courts.

It is undisputed that the IRS had no prior evidence

or even suspicion of any wrongdoing by Mr. Harper

and that its only purpose in executing the summons—

at least as applied to Mr. Harper—was a speculative

hope that it might find such evidence. That speculation was not sufficient to justify the search and seizure

of the records at issue because it did not rise to the

level of probable cause required under the Fourth

Amendment.

Almost the entirety of both lower courts’ Fourth

Amendment analysis was based on the Katz “reasonable-expectation-of-privacy” test. Discussion of Mr.

Harper’s alternative Fourth Amendment argument

rooted in his property rights in the records seized was

perfunctory and, in the end, relied almost exclusively

on United States v. Miller—a case that applied only a

privacy-based analysis—to conclude that no Fourth

Amendment violation had occurred.

But there should be no doubt that an unreasonable

and unjustified search and seizure of records belonging to Mr. Harper occurred in this case. Mr. Harper’s

private financial records were collected without his

authorization or knowledge and turned over to the

IRS under the terms of a general summons that swept

up the records of everyone who met the general conditions of that summons—that is, without ever naming

Mr. Harper or asserting a claim that Mr. Harper had

been or was likely to have been involved in a tax delinquency or any other wrongdoing. Indeed, it is undisputed that Mr. Harper has never been identified as

part of or otherwise connected to any crime over which

the IRS has jurisdiction and that he has in fact complied with all applicable provisions of the tax code.

14

The search and seizure was thus conducted without

probable cause, without a particularized description

of Mr. Harper, and without an alleged nexus between

Mr. Harper and an actual crime.

The best description of the summons used to justify the search and seizure of Mr. Harper’s private financial records is that it constituted a modern-day

general warrant or writ of assistance because it operated as a general permission allowing the IRS to go

fishing for possible evidence of a crime. But it is the

general warrant and writ of assistance specifically

that the Fourth Amendment was created to abolish.

Moreover, as Carpenter explained, “our cases establish that warrantless searches are typically unreasonable where a search is undertaken by law enforcement officials to discover evidence of criminal wrongdoing. . . . The Court usually requires some quantum

of individualized suspicion before a search or seizure

takes place.” 585 U.S. at 316–17 (cleaned up). Such

“individualized suspicion” was lacking here and, thus,

an unreasonable search and seizure occurred.

The only possible ground to uphold the decisions of

the lower courts, therefore, turns on their reliance on

Miller to find that the financial records at issue belonged to Coinbase, the cryptocurrency exchange, rather than to Mr. Harper. But that conclusion failed to

account for Miller’s commitment to treating Fourth

Amendment rights as a matter of privacy, certain distinctions between the two sets of records at issue, and

the Miller court’s underlying assumption regarding

the ownership of the records at issue in that case.

First, as Miller explained: “We must examine the

nature of the particular documents sought to be protected in order to determine whether there is a

15

legitimate ‘expectation of privacy’ concerning their

contents.” 425 U.S. at 442. The Court’s understanding

of the records at issue, in other words, was inexorably

intertwined with, and read through the lens of, privacy. For that reason alone, application of Miller to a

property-based Fourth Amendment claim is improper.

Second, at least some of the records at issue in Miller could rightly be considered, as a matter of property

law, no longer the property of the plaintiff because

they were checks and thus “not confidential communications but negotiable instruments to be used in commercial transactions.” Id. That contrasts with Mr.

Harper’s records here, all of which concerned his personal identifying information, his records of account

activity identifying the date, amount, and type of

transaction, and, most importantly of all, the identifying information that will now allow the IRS to track

Mr. Harper’s cryptocurrency transactions for the rest

of his life no matter where or with whom he chooses

to transact These records and information were and

are particular to Mr. Harper, and he retained and continues to retain control over them. Crucially, at the

time of the execution of the IRS summons, no party

had a right of access to those records except Mr. Harper and the Coinbase exchange pursuant to their contractual agreements. 2

2 Cf. Carpenter, 585 U.S. at 401 (Gorsuch, J., dissenting) (“I doubt

that complete ownership or exclusive control of property is always a necessary condition to the assertion of a Fourth Amendment right. Where houses are concerned, for example, individuals can enjoy Fourth Amendment protection without fee simple

title. Both the text of the Amendment and the common law rule

support that conclusion. . . . Another point seems equally true:

just because you have to entrust a third party with your data

16

Third, the Miller court’s characterization of the

records at issue in that case predicate facts that

demonstrate Mr. Harper’s possessory interests in the

records at issue in this case. 3 Thus, Miller noted that

“[a]ll of the documents obtained, including financial

statements and deposit slips, contain only information

voluntarily conveyed to the banks and exposed to their

employees in the ordinary course of business. . . . The

depositor takes the risk, in revealing his affairs to another, that the information will be conveyed by that

person to the Government.” 425 U.S. at 442–43. But

one cannot “reveal his affairs” or “voluntarily convey

information” to another party if one’s affairs and information are not already one’s own. Further, the nature of any such “conveyance” in the context of financial services is one of bailment, not absolute relinquishment, otherwise the customer would never have

the right to access and secure those records at his convenience or prevent others from accessing them.

Justice Gorsuch explained the bailment concept in

his dissent in Carpenter:

[T]he fact that a third party has access to or possession of your papers and effects does not necessarily eliminate your interest in them. Ever hand

a private document to a friend to be returned? Toss

your keys to a valet at a restaurant? Ask your

neighbor to look after your dog while you travel?

You would not expect the friend to share the document with others; the valet to lend your car to his

doesn’t necessarily mean you should lose all Fourth Amendment

protections in it.”).

3 Cf. Jones, 565 U.S. at 408 n.5 (“[A] seizure of property occurs

. . . when there is some meaningful interference with an individual’s possessory interests in that property.”).

17

buddy; or the neighbor to put Fido up for adoption.

Entrusting your stuff to others is a bailment.

585 U.S. at. 399. And Justice Gorsuch specifically distinguished this understanding from that used in Miller, noting that whereas Fourth Amendment rights

might be extinguished under the reasonable-expectation-of-privacy rubric, “property law may preserve

them.” Id. at 400; see id. (“These ancient principles

may help us address modern data cases too. Just because you entrust your data—in some cases, your

modern-day papers and effects—to a third party may

not mean you lose any Fourth Amendment interest in

its contents.”) (emphasis added).

In short, under the traditional property and trespass approach, “Fourth Amendment protections for

your papers and effects do not automatically disappear just because you share them with third parties.”

Id. at 396.

It cannot be doubted that this case involved an unreasonable search and seizure of Mr. Harper’s papers

and effects and that his Fourth Amendment rights

were thereby violated. That the lower courts failed to

engage these issues and dismissed them with a perfunctory reliance on Miller demonstrates the Court’s

need to step in and vindicate Mr. Harper’s Fourth

Amendment rights here—both for his sake and for all

citizens of the United States who have a right to be

protected from a too permeating police surveillance.

CONCLUSION

For the foregoing reasons, this Court should grant

the Petition.

18

Respectfully submitted,

Cynthia Fleming Crawford

Counsel of Record

Lee A. Steven

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-2227

(571) 329-1716

ccrawford@afphq.org

lsteven@afphq.org

Counsel for Amicus Curiae

19

March 28, 2025