Amicus Curiae Brief — Frank Thompson, Petitioner v. Carl Wilson, Commissioner, Maine Department of Marine Resources

No. 25-1105

In the Supreme Court of the United States

__________

FRANK THOMPSON,

Petitioner,

v.

CARL WILSON, IN HIS OFFICIAL CAPACITY AS

COMMISSIONER, MAINE DEPARTMENT OF MARINE

RESOURCES,

Respondent.

__________

On Petition for a Writ of Certiorari to the

United States Court of Appeals for the First Circuit

__________

BRIEF OF THE CATO INSTITUTE AND

NATIONAL FEDERATION OF INDEPENDENT

BUSINESS SMALL BUSINESS LEGAL

CENTER, INC. AS AMICI CURIAE IN SUPPORT

OF PETITIONER

__________

Elizabeth Milito

Rob Smith

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th St., NW

Ste. 1001

Washington, DC 20004

Dated: April 22, 2026

Matthew P. Cavedon

Counsel of Record

Laura A. Bondank

Harrison Prestwich

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(706) 309-2859

mcavedon@cato.org

i

QUESTION PRESENTED

The questions presented are:

1. Whether Maine’s requirement that lobstermen

place a GPS tracking device on their private fishing

vessels and submit to 24/7 surveillance constitutes an

unreasonable trespassory search in violation of the

Fourth Amendment?

2. Whether

courts

must

evaluate

the

reasonableness of a warrantless administrative search

based on the Fourth Amendment’s protections against

government trespass, and not solely on a business

owner’s reasonable expectations of privacy?

ii

TABLE OF CONTENTS

Page

QUESTION PRESENTED ........................................... i

TABLE OF CONTENTS.............................................. ii

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

INTEREST OF AMICI CURIAE ................................. 1

SUMMARY OF ARGUMENT ..................................... 3

ARGUMENT ................................................................ 5

I.

THE FIRST CIRCUIT DID NOT

CONSIDER WHETHER THE MDMR

RULE EFFECTS A SEIZURE. ..................... 5

II.

A WARRANT EXCEPTION CANNOT

AUTHORIZE SEARCHES THAT A

WARRANT COULD NOT.............................. 8

III. THE DECISION BELOW ENABLES

MASS GOVERNMENT

SURVEILLANCE. ....................................... 11

CONCLUSION .......................................................... 14

iii

TABLE OF AUTHORITIES

Page(s)

Cases

Camara v. Mun. Ct. of S.F., 387 U.S. 523

(1967) .............................................................. 8, 9, 11

Carpenter v. United States, 585 U.S. 296

(2018) ............................................................ 4, 11, 12

City of Los Angeles v. Patel, 576 U.S. 409

(2015) ................................................ 9, 10, 12, 13, 14

Club Madonna Inc. v. City of Miami Beach,

42 F.4th 1231 (11th Cir. 2022) .............................. 13

Club Retro LLC v. Hilton, 568 F.3d 181

(5th Cir. 2009) ........................................................ 12

Contreras v. City of Chicago, 119 F.3d 1286

(7th Cir. 1997) ........................................................ 12

De La Cruz v. Quackenbush, 96 Cal. Rptr. 2d

92 (Cal. Ct. App. 2000) ........................................... 13

Donovan v. Dewey, 452 U.S. 594 (1980) ...................... 9

Gora v. City of Ferndale, 576 N.W.2d 141

(Mich. 1998) ............................................................ 13

Heffner v. Murphy, 745 F.3d 56 (3d Cir. 2014) ......... 13

Horton v. California, 496 U.S. 128 (1990) .................. 6

Kaiser Aetna v. United States, 444 U.S. 164

(1979) ........................................................................ 7

Lesser v. Espy, 34 F.3d 1301 (7th Cir. 1994) ............ 13

Liberty Coins, LLC v. Goodman, 880 F.3d 274

(6th Cir. 2018) ........................................................ 12

iv

LMP Servs. v. City of Chicago, 160 N.E.3d

822 (Ill. 2019) ......................................................... 13

Loretto v. Teleprompter Manhattan CATV

Corp., 458 U.S. 419 (1982) ....................................... 7

Marshall v. Barlow’s, Inc., 436 U.S. 307

(1978) ........................................................................ 8

Marshall v. Nolichuckey Sand Co., 606 F.2d

693 (6th Cir. 1979) ................................................. 12

Midwest Retailer Assoc., Ltd. v. City of

Toledo, 563 F. Supp. 2d 796 (N.D. Ohio

2008) ....................................................................... 13

New York v. Burger, 482 U.S. 691 (1987)

.............................................................. 3, 8, 9, 10, 11

Rivera-Corraliza v. Puig-Morales, 794 F.3d

208 (1st Cir. 2015) .................................................. 13

Rush v. Obledo, 756 F.2d 713 (9th Cir. 1985) ........... 13

See v. City of Seattle, 387 U.S. 541 (1967) .................. 8

Silverman v. United States, 365 U.S. 505

(1961) ........................................................................ 7

Soldal v. Cook Cnty., 506 U.S. 56 (1992) ............ 4, 5, 6

State v. Warren, 439 P.3d 357 (Mont. 2019) ............. 13

Tart v. Massachusetts, 949 F.2d 490

(1st Cir. 1991) ......................................................... 13

United States v. 4,432 Mastercases of

Cigarettes, 448 F.3d 1168 (9th Cir. 2006) ............. 13

United States v. Acklen, 690 F.2d 70

(6th Cir. 1982) ........................................................ 12

United States v. Argent Chem. Lab’ys., Inc.,

93 F.3d 572 (9th Cir. 1996) .................................... 13

v

United States v. Biswell, 406 U.S. 311 (1972) ............ 9

United States v. Chuang, 897 F.2d 646

(2d Cir. 1990) .......................................................... 13

United States v. Delgado, 545 F.3d 1195

(9th Cir. 2008) ........................................................ 13

United States v. Gonsalves, 435 F.3d 64

(1st Cir. 2006) ......................................................... 12

United States v. Hamad, 809 F.3d 898

(7th Cir. 2016) ........................................................ 12

United States v. Jacobson, 466 U.S. 109

(1984) ........................................................................ 6

United States v. Jones, 565 U.S. 400 (2012) ....... 11, 12

United States v. Knotts, 460 U.S. 276 (1983) ............ 12

United States v. Place, 462 U.S. 696 (1983) ................ 6

United States v. V-1 Oil Co., 63 F.3d 909

(9th Cir. 1995) ........................................................ 13

United Taxidermists Ass’n v. Ill. Dep’t of Nat.

Res., 436 F. App’x. 692 (7th Cir. 2011) .................. 12

V-1 Oil Co. v. Means, 94 F.3d 1420

(10th Cir. 1996) ...................................................... 13

Statutes & Legislative Materials

ME. STAT. tit. 16, § 639(4) (2025)............................... 10

Rules

FED. R. CRIM. P. 41 ..................................................... 10

Constitutional Provisions

U.S. CONST. amend. IV ............................................ 3, 5

vi

Other Authorities

Tracey Maclin, Constructing Fourth

Amendment Principles from the

Government Perspective: Whose Amendment

Is It, Anyway?, 25 AM. CRIM. L. REV. 669

(1988) ...................................................................... 11

Zachary R. Cormier, Constitutional Dead

Zones: Problematic Trends for Seizures of

Cell Phones Connected to the Recording of

Protests and Police Activity, 103 DENV. L.

REV. 97 (2025) .......................................................... 5

1

INTEREST OF AMICI CURIAE1

The Cato Institute is a nonpartisan public policy

research foundation founded in 1977 and dedicated to

advancing the principles of individual liberty, free

markets, and limited government. Cato’s Project on

Criminal Justice was founded in 1999, and focuses in

particular on the scope of substantive criminal

liability, the proper and effective role of police in their

communities, the protection of constitutional and

statutory safeguards for criminal suspects and

defendants, citizen participation in the criminal

justice system, and accountability for law enforcement

officers. Cato’s interest in this case arises from its

mission to support the rights that the Constitution

guarantees to all citizens.

The National Federation of Independent Business

Small Business Legal Center, Inc. (NFIB Legal

Center) is a nonprofit, public interest law firm

established to provide legal resources and be the voice

for small businesses in the nation’s courts through

representation on issues of public interest affecting

small businesses. It is an affiliate of the National

Federation of Independent Business, Inc. (NFIB),

which is the nation's leading small business

association. NFIB's mission is to promote and protect

the right of its members to own, operate, and grow

their businesses. NFIB represents, in Washington,

1 Rule 37 statement: All parties were timely notified of the filing

of this brief. No part of this brief was authored by any party’s

counsel, and no person or entity other than amici funded its

preparation or submission.

2

D.C., and all 50 state capitals, the interests of its

members.

Amici have a particular interest in this case as it

concerns the continuing vitality of the Fourth

Amendment and meaningful restraints on the exercise

of government power.

3

SUMMARY OF ARGUMENT

In March 2022, the Atlantic States Marine Fisheries Commission directed member states to require that

all federally permitted lobstermen affix GPS tracking

devices to their vessels. Pet. App. 5a–6a. Maine complied by promulgating a rule (the MDMR Rule) compelling Petitioner Frank Thompson, along with other

Maine lobstermen—to attach a device to his boat that

transmits his location to the government once every

minute, every hour, every day—including when the

vessel is docked and when Thompson is using it for

personal purposes. Id. at 6a. The device has no off

switch for the end of the workday. It does not pause

when Thompson needs to shuttle a family member to

the mainland. Pet. Br. 7. It runs continuously, generating a detailed, permanent record of Thompson’s

movements that the government may retain and mine

indefinitely.

Thompson filed suit in federal court to challenge

the MDMR rule as a violation of his Fourth Amendment right to be free from unreasonable searches and

seizures. Id. at 8–9. On appeal, the First Circuit upheld the Rule as a permissible search based on its application of the administrative search exception outlined in New York v. Burger, 482 U.S. 691 (1987). This

petition follows.

The First Circuit’s analysis misses a threshold

question. The Fourth Amendment prohibits unreasonable searches and unreasonable seizures. U.S. CONST.

amend. IV. Each government action requires separate

analysis. By compelling Thompson to permanently affix a government GPS device to his boat, Maine has

meaningfully interfered with his possessory interest in

his property. That is a seizure. See Soldal v. Cook

4

Cnty., 506 U.S. 56 (1992). The administrative search

exception addresses searches. Its application in this

case cannot authorize a seizure of Thompson’s property.

Even under the administrative search exception,

the First Circuit’s decision cannot stand. A warrant exception cannot authorize a search that no warrant

could. Burger’s three-prong test was designed to ensure that administrative searches stay cabined to the

same limits a warrant requires, not authorize far

broader searches. The First Circuit’s analysis imposes

no meaningful restraints on a search’s necessity,

method, or scope. It turns an exception into a windfall.

The First Circuit’s error will not stay confined to

Maine’s lobstermen. The decision below creates a replicable framework under which any agency may impose continuous GPS tracking with no judicial oversight and no endpoint. This Court has already recognized that technology-enabled location tracking poses

a serious threat to the Fourth Amendment. See Carpenter v. United States, 585 U.S. 296 (2018). That

threat is amplified by the vast number of industries

that have already been accorded “closely regulated”

status. The First Circuit’s decision would subject every

one of those industries to mass surveillance. The

Fourth Amendment’s protections cannot weaken as

regulation expands. This Court should grant the petition and reverse.

5

ARGUMENT

I.

THE FIRST CIRCUIT DID NOT CONSIDER

WHETHER THE MDMR RULE EFFECTS A

SEIZURE.

The Fourth Amendment protects against “unreasonable searches and seizures.” U.S. CONST. amend. IV

(emphasis added). The constitutional text makes clear

that the Framers were “not only concerned about ‘the

violation of privacy brought about by the general ransacking of homes and places of business,’ but also ‘the

carrying away of everything upon which hands could

be laid.’” Zachary R. Cormier, Constitutional Dead

Zones: Problematic Trends for Seizures of Cell Phones

Connected to the Recording of Protests and Police Activity, 103 DENV. L. REV. 97, 129 (2025) (citation omitted).

Since the latter half of the 20th century, the question of what constitutes a search has dominated

Fourth Amendment jurisprudence. But decades of

search-focused analysis have not erased the independent need to assess whether a government intrusion

into private property amounts to an unreasonable seizure. See generally Soldal, 506 U.S. at 56. In its decision below, the First Circuit cabined its inquiry to

whether the MDMR Rule constitutes a search. In doing so, it overlooked an equally fundamental question:

whether Maine’s rule compelling lobstermen to install

and continuously power GPS devices aboard their vessels effects a seizure of their boats. The search and seizure inquiries are distinct, each with its own doctrinal

framework and constitutional consequences. It is important that courts consider both when evaluating

whether government action violates the Fourth

Amendment.

6

Searches and seizures invade a person’s property

interests in different ways. See Horton v. California,

496 U.S. 128, 133 (1990). While a search may “compromise[] the individual interest in privacy; a seizure deprives the individual of dominion over his or her person or property.” Id. Thus, this Court has held that “[a]

‘seizure’ of property occurs when there is some meaningful interference with an individual’s possessory interest in that property,” irrespective of whether that

intrusion violates a person’s reasonable expectation of

privacy. United States v. Jacobson, 466 U.S. 109, 113

(1984); Soldal, 506 U.S. at 68. Accordingly, finding

that a person lacks a reasonable expectation of privacy

in an object does not resolve the separate question of

whether the government’s interference with that property amounts to a seizure. Jacobson, 466 U.S. at 118

(engaging in a separate seizure inquiry after determining no search occurred); United States v. Place, 462

U.S. 696, 707 (1983) (same).

But this Court’s decision in Soldal makes this point

explicit. In that case, a local police department helped

facilitate the illegal removal of a mobile home from a

mobile home park. 506 U.S. at 58. The Seventh Circuit

held that this action did not amount to a seizure because there was no corresponding invasion of privacy.

Id. at 60, 69. This Court rejected the idea that the

Fourth Amendment fails to protect a person’s possessory interests “where neither privacy nor liberty was

at stake,” id. at 62, and instead held that “seizures of

property are subject to Fourth Amendment scrutiny

even though no search within the meaning of the

Amendment has taken place,” id. at 68.

Had the First Circuit engaged in a separate seizure

analysis, it is likely that it would have concluded that

7

the MDMR Rule meaningfully interfered with Thompson’s possessory interest in his boat. This Court has

acknowledged that even a minor permanent physical

occupation of an individual’s property can interfere

with his possessory interest if it deprives him of the

right to exclude. Loretto v. Teleprompter Manhattan

CATV Corp., 458 U.S. 419, 433 (1982) (quoting Kaiser

Aetna v. United States, 444 U.S. 164, 176 (1979)) (analyzing property in the context of the Takings Clause

but noting that the right to exclude is universally held

to be a fundamental element of property rights).

The MDMR Rule amounts to more than a minor intrusion. It requires Thompson to install and power a

GPS device that monitors the boat’s location 24/7 while

also collecting audio information aboard the vessel.

Pet. Br. 6. The GPS device must remain enabled at all

times, without exception for time of day or location. Id.

at 7. It doesn’t matter if the vessel is docked or at sea,

or whether Thompson is using the boat for personal

reasons—the GPS tracker must remain present and

active. Id. The MDMR Rule does not just interfere with

Thompson’s ability to possess and use his boat, it supplants his control of the vessel entirely by injecting the

government’s perpetual, warrantless presence. See

Silverman v. United States, 365 U.S. 505, 511 (1961)

(holding the secret installation of a listening device in

a person’s home violated the Fourth Amendment by

“usurping part of the petitioners’” property).

The Fourth Amendment’s protections against unreasonable searches and seizures are best understood

not as alternative inquiries, but as independent constitutional guarantees each warranting its own careful

analysis. By confining its review to whether the

MDMR Rule constitutes a search, the First Circuit left

8

unanswered an equally important constitutional question: whether compelling Thompson to permanently

install and continuously power a GPS device aboard

his vessel amounts to an unreasonable seizure of his

property. The government’s acquisition of personal

property as a platform for ongoing, warrantless surveillance is best understood as the kind of intrusion

the Fourth Amendment was designed to address—and

one that benefits from a complete constitutional analysis. This Court should grant the petition and remand

this case to determine whether the government unreasonably seized Thompson’s property.

II. A WARRANT EXCEPTION CANNOT AUTHORIZE

SEARCHES THAT A WARRANT COULD NOT.

The administrative search exception may relax the

need for judicial preauthorization, but it does not

grant search authority beyond what a warrant would

allow. Burger, 482 U.S. at 703. The three-prong Burger

test was designed to ensure that warrantless searches

in closely regulated industries are backed by the functional equivalent of a warrant. Id. at 702. Yet the First

Circuit reads Burger to clear the way for searches that

a warrant could never authorize. Pet. App. 29a–30a.

The warrant requirement was central to this

Court’s reasoning when it first defined the administrative search exception. Camara v. Mun. Ct. of S.F., 387

U.S. 523, 528 (1967); See v. City of Seattle, 387 U.S.

541, 543 (1967). Warrants exist to prevent the government from conducting searches broader than a neutral

magistrate will allow. See Marshall v. Barlow’s, Inc.,

436 U.S. 307, 323 (1978). Regulatory need does not

eliminate the underlying concern, though it may

change how it is addressed. See, 387 U.S. at 545; Camara, 387 U.S. at 533 (“We simply cannot say that the

9

protections provided by the warrant requirement are

not needed in this context.”).

This Court formalized this understanding in

Burger, establishing a three-prong test meant to replicate—not override—the warrant system. Burger, 482

U.S. at 702. First, to ensure that the search serves a

legitimate purpose rather than a pretextual one,

“there must be ‘substantial’ government interest” in

the regulatory scheme. Id.; see also Camara, 387 U.S.

at 538–39 (comparing the government’s interest to the

probable cause requirement). Second, warrantless inspections must be “necessary,” not merely convenient.

Burger, 482 U.S. at 702. Finally, the regulatory

scheme must also “provide a constitutionally adequate

substitute for a warrant.” Id. at 703. Thus, the scheme

must set limits in “time, place, and scope.” Id.

The three prongs ensure that searches under the

exception are kept within the bounds of a warrant.

They are interlocking requirements, and all three

must be satisfied. A court that relies on the government’s “substantial interest” to justify administrative

searches of any method and duration has not satisfied

Burger—it has used its most permissive prong to avoid

its most demanding ones. See City of Los Angeles v. Patel, 576 U.S. 409, 426–28 (2015) (holding that the government’s substantial interest cannot save a regulatory scheme that fails prongs two and three); cf. United

States v. Biswell, 406 U.S. 311, 312 n.1, 315 (1972) (upholding a regulatory scheme because it was carefully

limited in time, place, and scope); Donovan v. Dewey,

452 U.S. 594, 604 (1980) (same).

The First Circuit’s treatment of both the second

and third prongs reflects this error. According to the

decision below, Burger’s second, “necessity” prong asks

10

only whether warrantless searches are necessary in

general, not whether the particular method employed

is necessary. Pet. App. 25a; see Burger, 482 U.S. at 702.

In its view, the method of search “need only reasonably

serve” the government’s interest. Pet. App. 25a. But

under this reading, an agency that decides some kind

of warrantless inspections are necessary would ipso

facto have free rein to deploy continuous video surveillance, indefinite GPS monitoring, or any other investigative technique. This conflicts with this Court’s understanding of Burger. Patel, 576 U.S. at 427.

The First Circuit also warps Burger’s third, “constitutionally adequate substitute” prong. When the government seeks to install a GPS device via warrant, federal rules and Maine’s own statutes cap its use at 45

and 60 days. See FED. R. CRIM. P. 41; ME. STAT. tit. 16,

§ 639(4) (2025). But no such restrictions apply to the

GPS device attached to Thompson’s vessel. See Pet.

App. 151a–152a. A test designed to replicate the warrant system cannot authorize a search that system

specifically forbids. Maine’s administrative scheme

overrides the “time, place, and scope” limits imposed

in the warrant system and so cannot be a “constitutionally adequate substitute” for it. Burger, 482 U.S.

at 703.

The Fourth Amendment requires more than just a

sufficient regulatory interest: it prescribes careful limits on searches and seizures regardless of context. The

First Circuit has used a warrant exception to authorize a search power that a warrant could not confer.

This Court should reverse that error.

11

III. THE DECISION BELOW ENABLES

GOVERNMENT SURVEILLANCE.

MASS

No Fourth Amendment violation exists in isolation.

See Tracey Maclin, Constructing Fourth Amendment

Principles from the Government Perspective: Whose

Amendment Is It, Anyway?, 25 AM. CRIM. L. REV. 669,

670 (1988). The First Circuit has handed agencies a

replicable framework for continuous surveillance with

no time, place, or scope constraints. It has sanctioned

further expansion of the “too permeating police surveillance” that this Court has cautioned against. Carpenter, 585 U.S. at 305.2

GPS tracking is categorically different from the

spot inspections for which the administrative search

exception was developed. GPS surveillance is cumulative and unrelenting. Compare Burger, 482 U.S. at 693

(periodic inspections of junkyards) with United States

v. Jones, 565 U.S. 400, 412 (2012) (long-term GPS

monitoring of a vehicle). Location-monitoring technology has made it possible for the government to track a

person’s movements “for years and years.” Carpenter,

585 U.S. at 313. The data collected by these devices

reveal more than merely the location of bodies at discrete points in time: they open “an intimate window

into a person’s life” by generating a “precise, comprehensive record” of movements revealing far more than

2 The First Circuit held that this Court’s precedent concerning

location tracking is “criminal in nature” and thus inapposite. Pet.

App. 28a; Carpenter, 585 U.S. at 296; United States v. Jones, 565

U.S. 400, 404 (2012). But “[i]t is surely anomalous to say that the

individual and his private property are fully protected by the

Fourth Amendment only when the individual is suspected of

criminal behavior.” Camara, 387 U.S. at 530.

12

any single inspection ever could. Id. at 311; Jones, 565

U.S. at 415 (Sotomayor, J., concurring).

The MDMR Rule enables “dragnet-type law enforcement practices.” Jones, 565 U.S. at 409 n.6 (quoting United States v. Knotts, 460 U.S. 276, 284 (1983)).

The GPS device does not turn off when Thompson uses

his boat for personal reasons, such as when he transported his daughter-in-law to the mainland to give

birth. Pet. Br. 7. It tracks Thompson’s vessel 24 hours

a day, 7 days a week, giving the government a vast repository of his movement history that it can “efficiently

mine . . . for information years into the future.” Jones,

565 U.S. at 415 (Sotomayor, J., concurring).

The implications of this case do not stop at Maine’s

lobster boat docks. The decision below sanctions invasive, technology-enabled surveillance of other “closely

regulated industries”—and the people who engage in

them. Although this Court has been hesitant to expand

the class of “closely regulated industries,” see Patel,

576 U.S. at 424–25, lower courts have not. Today,

“closely regulated” status applies to precious metals,3

pharmacies,4 sand and gravel,5 nightclubs,6 tobacco,7

taxidermy,8 medical drugs,9 food safety,10 veterinary

3 Liberty Coins, LLC v. Goodman, 880 F.3d 274 (6th Cir. 2018).

4 United States v. Acklen, 690 F.2d 70 (6th Cir. 1982).

5 Marshall v. Nolichuckey Sand Co., 606 F.2d 693 (6th Cir. 1979).

6 Club Retro LLC v. Hilton, 568 F.3d 181 (5th Cir. 2009).

7 United States v. Hamad, 809 F.3d 898 (7th Cir. 2016).

8 United Taxidermists Ass’n v. Ill. Dep’t of Nat. Res., 436 F. App’x.

692 (7th Cir. 2011).

9 United States v. Gonsalves, 435 F.3d 64 (1st Cir. 2006).

10 Contreras v. City of Chicago, 119 F.3d 1286 (7th Cir. 1997).

13

drugs,11 sale of rabbits,12 fishing,13 commercial trucking,14 foreign trade zones,15 oil and gas,16 transporting

hazardous materials,17 adult entertainment,18 daycare

centers,19 food trucks,20 massage parlors,21 dog breeding,22 funeral homes,23 gambling,24 banks,25 insurance

companies,26 and convenience stores.27 Under the First

Circuit’s reasoning, every vehicle used in any of these

industries could be subject to continuous surveillance.

The administrative search exception was not designed to permit the continuous, warrantless surveillance of any person working in any industry the government chooses to regulate. Over the last 56 years,

this Court “has identified only four industries that”

have earned the title of “closely regulated.” Patel, 576

U.S. at 424. It has declined to overextend this

11 United States v. Argent Chem. Lab’ys., Inc., 93 F.3d 572 (9th

Cir. 1996).

12 Lesser v. Espy, 34 F.3d 1301 (7th Cir. 1994).

13 Tart v. Massachusetts, 949 F.2d 490 (1st Cir. 1991).

14 United States v. Delgado, 545 F.3d 1195 (9th Cir. 2008).

15 United States v. 4,432 Mastercases of Cigarettes, 448 F.3d 1168

(9th Cir. 2006).

16 United States v. V-1 Oil Co., 63 F.3d 909 (9th Cir. 1995).

17 V-1 Oil Co. v. Means, 94 F.3d 1420 (10th Cir. 1996).

18 Club Madonna Inc. v. City of Miami Beach, 42 F.4th 1231 (11th

Cir. 2022).

19 Rush v. Obledo, 756 F.2d 713 (9th Cir. 1985).

20 LMP Servs. v. City of Chicago, 160 N.E.3d 822 (Ill. 2019).

21 Gora v. City of Ferndale, 576 N.W.2d 141 (Mich. 1998).

22 State v. Warren, 439 P.3d 357 (Mont. 2019).

23 Heffner v. Murphy, 745 F.3d 56 (3d Cir. 2014).

24 Rivera-Corraliza v. Puig-Morales, 794 F.3d 208 (1st Cir. 2015).

25 United States v. Chuang, 897 F.2d 646 (2d Cir. 1990).

26 De La Cruz v. Quackenbush, 96 Cal. Rptr. 2d 92 (Cal. Ct. App.

2000).

27 Midwest Retailer Assoc., Ltd. v. City of Toledo, 563 F. Supp. 2d

796 (N.D. Ohio 2008).

14

classification to ensure that this “narrow exception”

does not “swallow the rule.” Id. at 424–25. Yet the decision below adopts an expansive reading that would

encompass a sweeping array of industries, effectively

authorizing unchecked, large-scale surveillance of

businesses and people. Such a result is incompatible

with the Fourth Amendment. Americans do not sacrifice a huge portion of their basic privacy simply by occupying part of their time working in a lawful industry.

CONCLUSION

For these reasons and those described by Petitioner, this Court should grant the petition.

Respectfully submitted,

Elizabeth Milito

Rob Smith

NFIB SMALL BUSINESS

LEGAL CENTER, INC.

555 12th St., NW

Ste. 1001

Washington, DC 20004

Dated: April 22, 2026

Matthew P. Cavedon

Counsel of Record

Laura A. Bondank

Harrison Prestwich

CATO INSTITUTE

1000 Mass. Ave., N.W.

Washington, DC 20001

(706) 309-2859

mcavedon@cato.org