Amicus Curiae Brief — Okello T. Chatrie, Petitioner v. United States

No. 25-112

IN THE

Supreme Court of the United States

_________________________________________________

OKELLO T. CHATRIE,

Petitioner,

v.

UNITED STATES OF AMERICA,

Respondent.

____________________________________________________________________________________________________

On Writ of Certiorari to the

United States Court of Appeals

for the Fourth Circuit

____________________________________________________________________________________________________

BRIEF OF AMICUS CURIAE

AMERICANS FOR PROSPERITY FOUNDATION

IN SUPPORT OF PETITIONER

————

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

March 2, 2026

i

TABLE OF CONTENTS

Table of Authorities.................................................... ii

Interest of Amicus Curiae ...........................................1

Summary of Argument................................................2

Argument .....................................................................5

I.

The Fourth Amendment Protects Privacy and

Liberty by Securing Property ...........................5

A. The Concept of a “Search” Does Not Shrink Due

to Evolving Societal Expectations ....................6

B. The

Fourth

Amendment

Guarantees

Individual Property-Focused Rights ..............11

II.

Sharing Digital Information Does Not

Automatically

Destroy

Constitutionally

Protected Property Interests ..........................13

III.

The Third-Party Doctrine’s Judicial Gloss

Departs Downward From The Constitutional

Baseline ...........................................................20

Conclusion .................................................................24

ii

TABLE OF AUTHORITIES

Page(s)

Cases

Boyd v. United States,

116 U.S. 616 (1886) ............................................. 5

Brinegar v. United States,

338 U.S. 160 (1949) ............................................. 2

Byrd v. United States,

584 U.S. 395 (2018) ..................................... 12, 15

California v. Greenwood,

486 U.S. 35 (1988) ............................................... 8

Camara v. Mun. Court of S.F.,

387 U.S. 523 (1967) ............................................. 5

Carpenter v. United States,

585 U.S. 296 (2018). . 4, 7, 8, 9, 10, 11, 12, 13, 15,

16, 17, 19, 20, 21, 22

Carpenter v. United States,

484 U.S. 19 (1987) ............................................. 13

Cedar Point Nursery v. Hassid,

594 U.S. 139 (2021) ........................................... 17

City of L.A. v. Patel,

576 U.S. 409 (2015) ............................................. 6

Chapman v. United States,

365 U.S. 610 (1961) ........................................... 17

iii

Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd.,

527 U.S. 666 (1999) ........................................... 17

Compuserve Inc. v. Cyber Promotions,

962 F. Supp. 1015 (S.D. Ohio 1997) ................. 20

Cummings v. Missouri,

71 U.S. (4 Wall.) 277 (1867) .............................. 24

District of Columbia v. Heller,

554 U.S. 570 (2008) ............................................. 8

Dobbs v. Jackson Women’s Health Org.,

597 U.S. 215 (2022) ............................................. 8

Entick v. Carrington,

95 Eng. Rep. 807 (C.P. 1765) ............................ 20

Ex parte Jackson,

96 U.S. 727 (1877) ....................................... 14, 21

Florida v. Riley,

488 U.S. 445 (1989) ............................................. 8

Georgia v. Randolph,

547 U.S. 103 (2006) ..................................... 15, 16

Gibbons v. Ogden,

22 U.S. (9 Wheat.) 1 (1824) ................................. 9

Katz v. United States,

389 U.S. 347 (1967) ......................................... 6, 7

iv

Kyllo v. United States,

533 U.S. 27 (2001) ..................................... 8, 9, 11

Lange v. California,

594 U.S. 295 (2021) ........................................... 16

Minnesota v. Carter,

525 U.S. 83 (1998) ................................... 7, 10, 12

Morgan v. Fairfield Cty.,

903 F.3d 553 (6th Cir. 2018) ................. 6, 7, 9, 10

Olmstead v. United States,

277 U.S. 438 (1928) ........................................... 13

Rakas v. Illinois,

439 U.S. 128 (1978) ........................................... 17

Riley v. California,

573 U.S. 373 (2014) ....................................... 5, 13

Ruckelshaus v. Monsanto Co.,

467 U.S. 986 (1984) ........................................... 13

Schmidt v. Bank of Am., N.A.,

223 Cal.App.4th 1489 (Cal.Ct.App. 2014) ........ 18

Smith v. Maryland,

442 U.S. 735 (1979) ....................................... 8, 20

State of Tennessee v. Whitworth,

117 U.S. 139 (1886) ............................................. 9

Tyler v. Hennepin Cty.,

598 U.S. 631 (2023) ........................................... 16

v

United States v. Ackerman,

831 F.3d 1292 (10th Cir. 2016) ............. 13, 14, 20

United States v. Davis,

785 F.3d 498 (11th Cir. 2015) ........................... 22

United States v. Fellmy,

165 F.4th 501 (6th Cir. 2026) ........................... 16

United States v. Jones,

565 U.S. 400 (2012) ....................... 4, 8, 11, 20, 22

United States v. Krueger,

809 F.3d 1109 (10th Cir. 2015) ........................... 8

United States v. Miller,

425 U.S. 435 (1976) ....................................... 8, 21

United States v. Smith,

110 F.4th 817 (5th Cir. 2024) ................... 3, 5, 23

United States v. Thompson,

866 F.3d 1149 (10th Cir. 2017) ......................... 22

United States v. Warshak,

631 F.3d 266 (6th Cir. 2010) ............................. 14

Van Buren v. United States,

593 U.S. 374 (2021) ..................................... 13, 19

Verdun v. City of San Diego,

51 F.4th 1033 (9th Cir. 2022) ........................... 20

Virginia v. Moore,

553 U.S. 164 (2008) ........................................... 15

vi

Constitution

U.S. Const. amend. IV .......................................... 3, 6

Statutes

Ind. Code Ann. § 35-31.5-2-253(a)(15) ................... 19

Other Authorities

Akhil Reed Amar,

Fourth Amendment First Principles,

107 Harv. L. Rev. 757 (1994) ................ 10, 11, 13

Amy L. Peikoff,

Of Third-Party Bathwater: How to

Throw Out the Third-Party Doctrine

While Preserving Government’s Ability to

Use Secret Agents,

88 St. John’s L. Rev. 349 (2014) ....................... 23

Antonin Scalia & Bryan Garner,

Reading Law: The Interpretation of

Legal Texts (2012)............................................... 9

Chris Machold,

Note, Could Justice Gorsuch’s

Libertarian Fourth Amendment Be the

Future of Digital Privacy? A “Moderate”

Contracts Approach to Protecting

Defendants After Carpenter,

53 U.C. Davis L. Rev. 1643 (2020) ................... 17

vii

Daniel J. Solove,

Fourth Amendment Codification and

Professor Kerr’s Misguided Call for

Judicial Deference,

74 Fordham L. Rev. 747 (2005) ........................ 22

Haley Amster & Brett Diehl,

Note, Against Geofences,

74 Stan. L. Rev. 385 (2022)............................... 18

Joseph Story, Commentaries on the

Constitution (1833) ............................................. 6

Laura K. Donohue,

Functional Equivalence and Residual

Rights Post-Carpenter: Framing a Test

Consistent With Precedent and Original

Meaning,

2018 Sup. Ct. Rev. 347 (2018) .............. 12, 14, 18

Michael J. O’Connor,

Digital Bailments,

22 U. Pa. J. Const. L. 1271 (2020) .............. 17, 18

Morgan Cloud,

Property Is Privacy: Locke and Brandeis

in the Twenty-First Century,

55 Am. Crim. L. Rev. 37 (2018) .................. 11, 12

Neil Gorsuch et al.,

A Republic, If You Can Keep It (2019) ............. 11

N. Webster,

An American Dictionary of the English

Language (1828) (reprint 6th ed. 1989) ............. 9

viii

Randy Barnett,

Why the NSA Data Seizures Are

Unconstitutional,

38 Harv. J. L. & Pub. Pol. 3 (2015) .................. 12

Samuel Johnson, A Dictionary of the

English Language (1773) .................................... 9

Thomas W. Merrill,

The Landscape of Constitutional

Property,

86 Va. L. Rev. 885 (2000) ............................ 16, 17

Thomas W. Merrill,

Property and the Right to Exclude,

77 Neb. L. Rev. 730 (1998) ................................ 17

William Baude & James Y. Stern,

The Positive Law Model of the Fourth

Amendment,

129 Harv. L. Rev. 1821 (2016) .......................... 19

1

BRIEF OF AMICUS CURIAE

IN SUPPORT OF PETITIONER

Under Supreme Court Rule 37.3, 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.

Some of those key ideas include constitutionally

limited government and enforcing the Fourth

Amendment’s protections against unreasonable

searches and seizures and the prohibition against

general warrants authorizing government fishing

expeditions rummaging through Americans’ private

information. As part of this mission, AFPF appears as

amicus curiae before federal and state courts.

Here, AFPF writes to highlight the broader

jurisprudential and practical stakes of this case as

technology continuously evolves. AFPF believes that

technological innovation is key to unleashing

economic growth and prosperity. But the increasingly

intrusive government surveillance capabilities these

innovations enable, if left unchecked, threaten the

liberty and privacy of all Americans and potentially

1 Amicus curiae states that no counsel for any party authored

this brief in whole or in part, and no entity or person, aside from

amicus curiae or its counsel, made any monetary contribution

intended to fund the preparation or submission of this brief.

2

portend the emergence of an Orwellian police state

incompatible with our constitutional order.

The Fourth Amendment is a core safeguard

against this danger of government overreach. AFPF

urges this Court to apply the Amendment’s propertyfocused protections here through a technology-neutral

rubric capable of principled application to novel

technologies, including those that are now

unimaginable. The Amendment’s protections against

arbitrary government rummaging must remain as

robust today as when it was ratified.

More broadly, AFPF urges this Court to repudiate

the judicially created fiction that the Fourth

Amendment’s protections do not apply to “papers” and

“effects” possessed by third parties, regardless of how

sensitive the information contained therein and who

it belongs to under property law and contract

principles. The third-party doctrine has no basis in

the Fourth Amendment’s original public meaning and

eviscerates its protections. It should play no role in

how this Court resolves this case.

SUMMARY OF ARGUMENT

As Justice Robert Jackson observed long ago, the

Fourth Amendment’s guardrails on government

surveillance protect “indispensable freedoms. Among

deprivations of rights, none is so effective in cowing a

population, crushing the spirit of the individual and

putting terror in every heart.” Brinegar v. United

States, 338 U.S. 160, 180 (1949) (Jackson, J.,

dissenting). He continued: “Uncontrolled search and

seizure is one of the first and most effective weapons

in the arsenal of every arbitrary government.” Id.

3

That possibility, however theoretical and remote, is

what is at stake here. And this Court should nip it in

the bud to ensure it never materializes.

Pervasive and persistent government monitoring

of Americans’ movements, communications, and

transactions is incompatible with a free society and

antithetical to the property-focused protections of

privacy and liberty enshrined in the Fourth

Amendment. The Amendment neither contemplates

nor tolerates the creation of a government

surveillance state. And as America nears its 250th

birthday, it bears reminding that general warrants

granting government agents untrammeled searchand-seizure powers were among the grievances that

inspired the Founding generation’s desire for

independence from the Crown and a core animating

principle behind the Fourth Amendment.

There are societal costs to placing limits on how

law enforcement may investigate crimes, particularly

those that are serious. But in this country, the ends,

however laudable, do not justify the means. And

government efficiency is not the lodestar of our

constitutional order. To the contrary, limiting “the

government is the whole point of our Constitution.”

United States v. Smith, 110 F.4th 817, 841 (5th Cir.

2024) (Ho, J., concurring).

The Fourth Amendment promises that Americans

have the right “to be secure in their persons, houses,

papers, and effects,” U.S. Const. amend. IV, thereby

safeguarding individual liberty and privacy against

arbitrary government intrusion. It unequivocally bars

the government from launching fishing expeditions

and rummaging around our private “papers” and

4

“effects,” instead requiring a particularized warrant

based on probable cause signed by a neutral judge.

That bedrock proposition holds true regardless of the

form these constitutional property interests might

take—tangible or intangible—and does not turn on

who physically possesses the information.

Nor does the scope of the Fourth Amendment’s

protections turn on the capabilities of modern

technology, contemporary societal mores, or judicial

policy judgments on what privacy expectations should

be recognized as reasonable. On the contrary, it

guarantees the same baseline level of protection today

as when it was ratified. And “[t]here is another way”

to ascertain and respect its metes and bounds that is

“tied to the law.” Carpenter v. United States, 585 U.S.

296, 397 (2018) (Gorsuch, J., dissenting).

No matter how this Court resolves Petitioner’s

challenge to the “geofence” warrant in this case, it

should make clear that a person can have a

constitutionally protected property interest in his data

and digital information even when it is possessed by

third parties. There will be line-drawing challenges

and edge cases. But possession must not be a

condition precedent to Fourth Amendment protection.

And this Court should begin the incremental process

of elucidating what types of property interest in

digital information and data are protected and by

which sources of law. It is not without principled

guideposts, including analogical reasoning to

Founding-era law, contemporary positive and

common law, and contract principles.

For the foregoing reasons, this Court should

analyze this case through a property-focused rubric

5

grounded in the Fourth Amendment’s original public

meaning. At a minimum, it should hold that the

government’s acquisition of Petitioner’s Location

History (“LH”) data constituted a “search” within the

meaning of the Fourth Amendment.2

ARGUMENT

I.

The Fourth Amendment Protects Privacy

and Liberty by Securing Property.

The Fourth Amendment “safeguard[s] the privacy

and security of individuals against arbitrary

invasions by governmental officials,” Camara v. Mun.

Court of S.F., 387 U.S. 523, 528 (1967), protecting the

“indefeasible right of personal security, personal

liberty and private property,” Boyd v. United States,

116 U.S. 616, 630 (1886). It “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.” Riley v. California, 573 U.S. 373, 403 (2014).

And the Amendment, as Justice Story wrote, is

“indispensable to the full enjoyment of the rights of

personal security, personal liberty, and private

2 As Judge Wynn observed below, “geofence” warrants appear

“uncomfortably akin to the sort of ‘reviled’ general warrants . . .

the Framers intended the Fourth Amendment to forbid.” Pet.

App. 217a (dissenting). At least one court has so held. See Smith,

110 F.4th at 838 (holding “geofence warrants are general

warrants”). Although amicus shares those concerns, that issue is

beyond the scope of this brief.

6

property.” 3 Joseph Story, Commentaries on the

Constitution § 1895 (1833).

The Fourth Amendment expressly guarantees that

“[t]he right of the people to be secure in their persons,

houses, papers, and effects, against unreasonable

searches and seizures, shall not be violated,” also

promising that “no Warrants shall issue, but upon

probable cause, . . . particularly describing the place

to be searched, and the persons or things to be

seized.”3 U.S. Const. amend. IV. As a textual matter,

a “violation occurs when three things are true: (1) the

government engages in a search, (2) of a person,

house, paper, or effect, (3) that unreasonably violates

a person’s right to be secure in that object.” Morgan v.

Fairfield Cty., 903 F.3d 553, 567–68 (6th Cir. 2018)

(Thapar, J., concurring in part, dissenting in part). As

an original matter, these are distinct inquiries.

A. The Concept of a “Search” Does Not

Shrink

Due

to

Evolving

Societal

Expectations.

First, a “search.” Under one strand of this Court’s

jurisprudence, tracing its genesis to Katz v. United

States, 389 U.S. 347 (1967), whether a “search” occurs

turns on whether “government officers violate a

3 Each clause serves a distinct function. The Search-and-Seizure

Clause “tells the executive what it must do when it conducts a

search,” whereas the Warrant Clause “tells the judiciary what it

must do when it issues a search warrant.” City of L.A. v. Patel,

576 U.S. 409, 430–31 (2015) (Scalia, J., dissenting). Amicus

focuses here on original public meaning of the former clause.

7

person’s ‘reasonable expectation of privacy[.]’”4 United

States v. Jones, 565 U.S. 400, 406 (2012) (quoting

Katz, 389 U.S. at 360 (Harlan, J., concurring)). That

approach breaks the tie between the Amendment’s

traditional ambit and replaces it with evolving

societal mores and value-laden normative judgments.

It thereby “invites courts to make judgments about

policy, not law,” Carpenter, 585 U.S. at 343 (Thomas,

J., dissenting), as “[d]eciding what privacy interests

should be recognized often calls for a pure policy

choice[.]” Id. at 393 (Gorsuch, J., dissenting).

This approach, when decoupled from traditional

protections, “distorts the original meaning of

‘searc[h],’” id. at 346 (Thomas, J., dissenting), and

“has no plausible foundation in the text of the Fourth

Amendment,”5 Minnesota v. Carter, 525 U.S. 83, 97

(1998) (Scalia, J., concurring). The Katz framework

artificially narrows the Amendment’s sweep,

“push[ing] too much police conduct outside of Fourth

Amendment scrutiny.” Morgan, 903 F.3d at 571

(Thapar, J., concurring in part, dissenting in part).

This approach has “yielded an often unpredictable—

“The word ‘search’ was not associated with ‘reasonable

expectation of privacy’ until Justice Harlan coined that phrase in

1967.” Carpenter, 585 U.S. at 347 (Thomas, J., dissenting).

5 As Justice Gorsuch observed in Carpenter, “there may be some

occasions where Katz is capable of principled application” and “it

may also be possible to apply Katz by analogizing from precedent

when the line between an existing case and a new fact pattern is

short and direct.” 585 U.S. at 394 (Gorsuch, J., dissenting).

Amicus does not address that question here.

4

8

and

sometimes

unbelievable—jurisprudence.”6

Carpenter, 585 U.S. at 394 (Gorsuch, J., dissenting).

Katz’s cramped conception of “search” is not only

atextual and illogical but creates a downward ratchet

from the Fourth Amendment’s baseline. As this Court

has repeatedly explained, the Fourth Amendment

protects the “degree of privacy against government

that existed” at the ratification. Id. at 305 (majority

op.) (quoting Kyllo v. United States, 533 U.S. 27, 34

(2001)). “Whatever new methods of investigation may

be devised, [this Court’s] task, at a minimum, is to

decide whether the action in question would have

constituted a ‘search’ within the original meaning of

the Fourth Amendment.” Jones, 565 U.S. at 406 n.3.

“Constitutional rights are enshrined with the

scope they were understood to have when the people

adopted them, whether or not future legislatures or

(yes) even future judges think that scope too broad.”

District of Columbia v. Heller, 554 U.S. 570, 634–35

(2008); see Dobbs v. Jackson Women’s Health Org., 597

U.S. 215, 235 (2022) (“Constitutional analysis must

begin with ‘the language of the instrument,’ which

offers a ‘fixed standard’ for ascertaining what our

founding document means.” (citations omitted)). And

6 See, e.g., Florida v. Riley, 488 U.S. 445, 451–52 (1989) (person

has no reasonable expectation of privacy from police helicopter

hovering at 400 feet over their home); California v. Greenwood,

486 U.S. 35, 40–44 (1988) (police going through a person’s

garbage in front of their home not a “search”); Smith v.

Maryland, 442 U.S. 735, 743–44, 746 (1979) (person has no

expectation of privacy in whom they call); United States v. Miller,

425 U.S. 435, 443 (1976) (same for banking records).

9

the Constitution’s “[w]ords must be given the meaning

they had when the text was adopted,” Antonin Scalia

& Bryan Garner, Reading Law: The Interpretation of

Legal Texts 78 (2012), and “are always to be given the

meaning they have in common use, unless there are

very strong reasons to the contrary,” State of

Tennessee v. Whitworth, 117 U.S. 139, 147 (1886); see

Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 188 (1824)

(“[T]he enlightened patriots who framed our

constitution . . . must be understood to have employed

words in their natural sense[.]”).

Here, there are no sound reasons to depart from

the ordinary meaning of the word “search,” which, at

the Founding, does not appear to be “a term of art, as

it does not appear in legal dictionaries from the era.”

Carpenter, 585 U.S. at 347 (Thomas, J., dissenting).

Instead, it was, and remains, a simple, commonsense

concept. “[H]istory shows that a ‘search’ meant then

what it means now: a purposeful, investigative act

(and nothing more).” Morgan, 903 F.3d at 568

(Thapar, J., concurring in part, dissenting in part). At

the Founding, “as now, to ‘search’ meant ‘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.’” Kyllo,

533 U.S. at 32 n.1 (quoting N. Webster, An American

Dictionary of the English Language 66 (1828) (reprint

6th ed. 1989)); see 1 Samuel Johnson, A Dictionary of

the English Language (1773) (defining “search” as

“Inquiry” or “Examination”).7

7 https://johnsonsdictionaryonline.com/1773/search_ns.

10

That is all that is required for an act to constitute

a “search” within the meaning of that word as used in

the Fourth Amendment; the concept itself has nothing

whatsoever to do with a person’s “reasonable

expectations” and does not invite judicial balancing.

See Morgan, 903 F.3d at 570 (Thapar, J., concurring

in part, dissenting in part) (“[A] search can plainly

occur regardless of whether a person reasonably

believes the area the officers rummage through is

private.”). When “search” is given its plain, original

meaning, it is apparent that “the concept is broader

than

th[is]

Court’s

current

jurisprudence

contemplates”—and more readily administrable by

courts, to boot.8 Id. at 572 (Thapar, J., concurring in

part, dissenting in part). And if a “search” is

understood in this way without judicial gloss, “many

things that are currently considered outside the

Amendment’s scope might come back in.” Id. at 571–

72 (Thapar, J., concurring in part, dissenting in part).

Moreover, the concept is technologically neutral

and does not change over time as surveillance

capabilities evolve. To the contrary, “[a] search is a

search, whether with Raybans or x-rays.” Akhil Reed

Amar, Fourth Amendment First Principles,107 Harv.

8 This Court’s jurisprudence “conflate[s]” the question whether

the government’s actions were “reasonable” with the antecedent

question whether a “search” occurred. See Morgan, 903 F.3d at

570 (Thapar, J., concurring in part, dissenting in part). These are

separate inquiries. See Carpenter, 585 U.S. at 326 (Kennedy, J.,

concurring). “[R]easonableness determines the legality of a

search, not ‘whether a search . . . within the meaning of the

Constitution has occurred.’” Id. at 355 (Thomas, J., dissenting)

(quoting Carter, 525 U.S. at 97 (opinion of Scalia, J.)).

11

L. Rev. 757, 769 (1994). And the Fourth Amendment’s

“meaning applies equally whether the government

seeks to conduct a search [of a home] the old-fashioned

way by rummaging through the place or in a more

modern way by using a thermal imaging device to see

inside.” Neil Gorsuch et al., A Republic, If You Can

Keep It 111 (2019); see Kyllo, 533 U.S. 27. Or by

obtaining someone’s cell-site location information. Cf.

Carpenter, 585 U.S. 296. Or, as in this case, LH data.

And the same would hold true for emerging

technologies and those beyond current contemplation.

B. The Fourth Amendment Guarantees

Individual Property-Focused Rights.

Of course, not all “searches” within the original

meaning of the Fourth Amendment implicate its

protections; only those that implicate a person’s right

to be secure in four categories of things: persons,

houses, papers, and effects. The Amendment’s plain

language “reflects its 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.” Jones, 565 U.S. at 405. And importantly,

it primarily guarantees an individual—as opposed to

collective—right closely tethered to a person’s

property interests.9 Its “text does not refer to a right

9 At the Founding, “liberty and privacy rights were understood

largely in terms of property rights.” Morgan Cloud, Property Is

Privacy: Locke and Brandeis in the Twenty-First Century, 55 Am.

12

exercised in relation to the property of others,”

focusing instead on “whose property was searched,”

Laura K. Donohue, Functional Equivalence and

Residual Rights Post-Carpenter: Framing a Test

Consistent With Precedent and Original Meaning,

2018 Sup. Ct. Rev. 347, 390 (2018), tellingly “us[ing] a

possessive

pronoun—‘their’—to

describe”

the

categories of things it safeguards, Randy Barnett,

Why the NSA Data Seizures Are Unconstitutional, 38

Harv. J. L. & Pub. Pol. 3, 13 (2015).10

By the Fourth Amendment’s plain text, it “gives

‘each person . . . the right to be secure against

unreasonable searches and seizures in his own

person, house, papers, and effects.’” Byrd v. United

States, 584 U.S. 395, 412 (2018) (Thomas, J.,

concurring) (quoting Carter, 525 U.S. at 92 (Scalia, J.,

concurring)). The Amendment thereby “grants you the

right to invoke its guarantees whenever one of your

protected things (your person, your house, your

papers, or your effects) is unreasonably searched or

seized. Period.” Carpenter, 585 U.S. at 391 (Gorsuch,

J., dissenting). All that is “needed to trigger” its

Crim. L. Rev. 37, 42 (2018). The Founding generation was well

acquainted with the concept “of security in property,” “a

prominent concept in English law[.]” Carpenter, 585 U.S. at 348–

49 (Thomas, J., dissenting). Indeed, “property” was an

“organizing constitutional idea.” Id. at 351.

10 As Professor Barnett has observed, “by availing themselves of

the law of property and contract, people create their own zones

of privacy. In short, first comes property and contract, then

comes privacy.” Barnett, 38 Harv. J. L. & Pub. Pol. at 13.

13

application is that “a house, paper, or effect was yours

under law.” Id. at 397–98 (Gorsuch, J., dissenting).

II.

Sharing Digital Information Does Not

Automatically Destroy Constitutionally

Protected Property Interests.

As a matter of first principles, “[t]his case should

not turn on ‘whether’ a search occurred.” Id. at 342

(Thomas, J., dissenting) (citation omitted). Here, it

plainly did: the government’s collection of Petitioner’s

LH information using a “geofence” warrant was a

deliberate investigative act.

This Court has also made clear that

constitutionally protected property rights may extend

to intangible property, such as commercial data.11 See

Ruckelshaus v. Monsanto Co., 467 U.S. 986, 1001–04

(1984). Cf. Olmstead v. United States, 277 U.S. 438,

487

(1928)

(Butler,

J.,

dissenting)

(“The

communications belong to the parties between whom

they pass.”). And at least as a general matter, data

and digital information might qualify, by analogy, as

modern-day “papers” and “effects” within the meaning

of the Fourth Amendment. See Riley, 573 U.S. at 399,

401 (suggesting digital records are “private effects”);

United States v. Ackerman, 831 F.3d 1292, 1304 (10th

Cir. 2016) (treating digital files as “paper” or “effect”);

see also Amar, 107 Harv. L. Rev. at 811 (“a person’s

“[I]t is well established that information contained in a

computer is ‘property.’” Van Buren v. United States, 593 U.S. 374,

400 (2021) (Thomas, J., dissenting). Similarly, “[c]onfidential

business information has long been recognized as property.”

Carpenter v. United States, 484 U.S. 19, 26 (1987).

11

14

‘effects’ may be intangible”); Donohue, 2018 Sup. Ct.

Rev. at 408 (“Digital documents and records

constitute ‘papers[.]’”).

There will be edge cases and hard questions. But

an interesting thought experiment is whether at least

in some circumstances comprehensive location data

might be a modern-day analog of a journal or ship’s

log, documenting the paths taken and locations

visited over an extended period of time.12 If so, it may

qualify as a modern-day “paper” or “effect” that should

be treated no different from that same information if

it were compiled in paper form. Cf. Ackerman, 831

F.3d at 1308 (applying “analogy from principle to new

technology” and treating emails as “papers” under the

Fourth Amendment); United States v. Warshak, 631

F.3d 266, 285–86 (6th Cir. 2010).

The Fourth Amendment’s protection of “papers”

and “effects” does not turn on where they are located

or stored. This Court has long made clear that a

person’s right “to be secure in their papers against

unreasonable searches and seizures extends to their

papers, thus closed against inspection, wherever they

may be.” Ex parte Jackson, 96 U.S. 727, 733 (1877).

Thus, “the fact that a third party has access to or

possession of your papers and effects does not

12 The LH information at issue here has been described by Google

as “a history or journal,” JA-16, the content of which is “capable

of being reviewed, edited, and deleted by the user,” JA-29.

According to Google, “Google LH information is created, edited,

and stored by and for the benefit of Google users[.]” JA-12. Users

“control[]” and “can review, edit, or delete” it “from Google’s

servers at will.” JA-12.

15

necessarily eliminate your interest in them.”

Carpenter, 585 U.S. at 399 (Gorsuch, J., dissenting).

Nor is “complete ownership or exclusive control of

property” a sine qua non to protection under the

Fourth Amendment, id. at 401 (Gorsuch, J.,

dissenting), or Fourth Amendment protection

defeated if an additional person has a possessory

property interest where the first party objects to the

search, Georgia v. Randolph, 547 U.S. 103, 115 (2006).

The broader (and thornier) doctrinal question is

which property rights are implicated when data is

accessible to or stored by a third party and whose

rights are they? That is, “what kind of property

interest do individuals need before something can be

considered ‘their[s] . . . under the original meaning of

the Fourth Amendment?” Byrd, 584 U.S. at 412

(Thomas, J., dissenting). That inquiry implicates

several related threshold questions: “what kind of

legal interest is sufficient to make something yours?

And what source of law determines that? Current

positive law? The common law at 1791, extended by

analogy to modern times? Both?” Carpenter, 585 U.S.

at 398–99 (Gorsuch, J., dissenting). Cf. Byrd, 584 U.S.

at 412 (Thomas, J., dissenting) (highlighting “at least

three threshold questions”). The best answer may well

be some combination of these and other guideposts.

“[S]tatutes and common law of the founding era”

may often supply evidence of “the norms that the

Fourth Amendment was meant to preserve,” Virginia

v. Moore, 553 U.S. 164, 168 (2008), and assist courts

in ascertaining its application. And “the Framers’

view provides a baseline for our own day: The

Amendment must provide at a minimum the degree

16

of protection it afforded when it was adopted.”13 Lange

v. California, 594 U.S. 295, 309 (2021) (cleaned up).

Cf. Tyler v. Hennepin Cty., 598 U.S. 631, 638 (2023)

(noting “traditional property law principles” and

“historical practice” supplement state law as source of

property rights protected under Takings Clause). The

Fourth Amendment’s Founding-era floor “embraces

the protections against unreasonable searches and

seizures that existed at common law at the time of its

adoption[.]” United States v. Krueger, 809 F.3d 1109,

1123 (10th Cir. 2015) (Gorsuch, J., concurring).

At the same time, “property rights change over

time.”14 United States v. Fellmy, 165 F.4th 501, 513

(6th Cir. 2026) (Thapar, J., concurring). And as

Justice Scalia has explained, “[t]here is nothing new

or surprising in the proposition that our unchanging

Constitution refers to other bodies of law that might

themselves change,” Randolph, 547 U.S. at 144

(dissenting), such as state property law, see id. Under

this Court’s Takings Clause jurisprudence, for

example, “[s]tate law is one important source” for

determining the existence vel non of a constitutionally

protected property interest. Tyler, 598 U.S. at 638.

The same principle might be applied in the Fourth

Amendment context.

This baseline might “bar efforts to circumvent the Fourth

Amendment’s protection through the use of subpoenas.”

Carpenter, 585 U.S. at 403 (Gorsuch, J., dissenting).

14 “Property is a dynamic institution that evolves over time in

response to changing technologies and changing levels of supply

and demand.” Thomas W. Merrill, The Landscape of

Constitutional Property, 86 Va. L. Rev. 885, 945 (2000).

13

17

Contractual principles supply another guidepost.15

There is no reason to think parties cannot agree that

data and digital information an individual provides to

a third party remains his property. See Carpenter, 585

U.S. at 353–54 (Thomas, J., dissenting) (noting “such

[contractual]

provisions

could

exist

in the

marketplace”). For example, a contractual right to

limit access to data held by third parties might give

rise to a property interest protected under the Fourth

Amendment. A right to delete might also be sufficient,

particularly if conceived as a “right to exclude,” which

“is one of the most treasured rights of property

ownership.”16 Cedar Point Nursery v. Hassid, 594 U.S.

139, 150 (2021); see Rakas v. Illinois, 439 U.S. 128,

143 n.12 (1978) (“One of the main rights attaching to

property is the right to exclude others[.]”); see also

Chapman v. United States, 365 U.S. 610, 616 (1961)

(apartment leaseholder). Indeed, “[t]he hallmark of a

protected property interest is the right to exclude

others.”17 Coll. Sav. Bank v. Fla. Prepaid

Postsecondary Educ. Expense Bd., 527 U.S. 666, 673

15 See Chris Machold, Note, Could Justice Gorsuch’s Libertarian

Fourth Amendment Be the Future of Digital Privacy? A

“Moderate” Contracts Approach to Protecting Defendants After

Carpenter, 53 U.C. Davis L. Rev. 1643, 1658–80 (2020).

16 “[P]roperty means something different than mere possession.”

Thomas Merrill, Property and the Right to Exclude, 77 Neb. L.

Rev. 730, 732 (1998). And the right to use property is a distinct

concept from the right to exclude. See id. at 741.

17 This stick in the bundle of property rights “does a good job of

identifying those interests that we may loosely call common-law

property rights.” Merrill, 86 Va. L. Rev. at 945. “For the Framing

Generation, the right to exclude was the quintessential property

right.” Michael J. O’Connor, Digital Bailments, 22 U. Pa. J.

Const. L. 1271, 1286 (2020).

18

(1999). And transfer of a portion of that right to a third

party, for example in the form of an easement, does

not throw open the doors to entry by the government

or the public. See, e.g., Schmidt v. Bank of Am., N.A.,

223 Cal. App. 4th 1489, 1501 (Cal. Ct. App. 2014)

(private easement does not create public right of way

nor regulation).

So too bailment law. “English common law has

long recognized that possession is insufficient to

extinguish a property owner’s residual rights. A bailor

and bailee both hold rights in the same property.”

Donohue, 2018 Sup. Ct. Rev. at 353 (citations

omitted). And digital records may well be a modernday species of bailment for consideration.18 See id. at

396–99; see also Haley Amster & Brett Diehl, Note,

Against Geofences, 74 Stan. L. Rev. 385, 410 (2022)

(suggesting people “have a property interest in their

SensorVault information, and those individuals who

knowingly opt into LH collection affirmatively

designate Google as a bailee”). Another possibility is

that in some circumstances “stor[ing] data with third

parties may amount to a sort of involuntary bailment”

Use of the bailment law in third-party possession cases to

ascertain the existence of a property interest for Fourth

Amendment purposes would appear to track with how that

concept applies elsewhere in this Court’s jurisprudence. See

O’Connor, 22 U. Pa. J. Const. L. at 1309 (suggesting this “Court

has regularly considered bailments as property under the

Takings and Due Process clauses”).

18

19

as a practical necessity of modern life. Carpenter, 585

U.S. at 402 (Gorsuch, J., dissenting).

Positive law provides another possible rubric

through which to assess the existence of property

rights in digital information protected under the

Fourth Amendment. A positive-law approach “ask[s]

judges to consult what the people’s representatives

have to say about their rights.” Id. at 398 (Gorsuch, J.,

dissenting) (citation omitted). It thus “carves out

significant room for legislative participation in the

Fourth Amendment context,” William Baude & James

Y. Stern, The Positive Law Model of the Fourth

Amendment, 129 Harv. L. Rev. 1821, 1852 (2016),

thereby providing “a sounder basis for judicial

decisionmaking than judicial guesswork about

societal expectations,” Carpenter, 585 U.S. at 402

(Gorsuch, J., dissenting). This approach is

technologically neutral and might be well suited to

keeping pace with rapidly changing surveillance

capabilities. And there is a growing body of positive

law courts may draw from. “Both the States and

federal government are actively legislating in the area

of third party data storage and the rights users enjoy.”

Id. For example, “[f]ederal and state law routinely

define ‘property’ to include computer data.” Van

Buren, 593 U.S. at 400 (Thomas, J., dissenting); see,

e.g., Ind. Code Ann. § 35-31.5-2-253(a)(15) (defining

“property” to include “data”).

Finally, tort law provides yet another guidepost for

assessing when a person’s data and digital

information held by a third party remain his property

and thus protected under the Fourth Amendment. Cf.

Carpenter, 585 U.S. at 353 (Thomas, J., dissenting)

(“If someone stole these records from Sprint or

20

MetroPCS, Carpenter does not argue that he could

recover in a traditional tort action.”). And “many

courts have already applied the common law’s ancient

trespass to chattels doctrine to electronic, not just

written, communications.”19 Ackerman, 831 F.3d at

1308 (listing examples); see, e.g., Compuserve Inc. v.

Cyber Promotions, 962 F. Supp. 1015, 1021 (S.D. Ohio

1997) (“Electronic signals generated and sent by

computer have been held to be sufficiently physically

tangible to support a trespass cause of action.”).

In sum, numerous traditional property-based

guideposts exist that this Court may draw from in

applying the Fourth Amendment’s protections to

emerging technologies.

III.

The Third-Party Doctrine’s Judicial Gloss

Departs

Downward

From

The

Constitutional Baseline.

A person’s Fourth Amendment right to be secure

in their “papers and effects do[es] not automatically

disappear” when they grant a third party access to

these materials. Carpenter, 585 U.S. at 398 (Gorsuch,

J., dissenting). But under the third-party doctrine, “a

person has no legitimate expectation of privacy in

information he voluntarily turns over to third

parties,” Smith, 442 U.S. at 743–44, “even if the

“[U]nder a common-law trespassory test, any government

intrusion on property is trespass no matter that ‘[the trespasser]

does no damage at all.’” Verdun v. City of San Diego, 51 F.4th

1033, 1049 (9th Cir. 2022) (Bumatay, J., dissenting)

(quoting Jones, 565 U.S. at 405 (quoting Entick v. Carrington, 95

Eng. Rep. 807, 817 (C.P. 1765)).

19

21

information is revealed on the assumption that it will

be used only for a limited purpose and the confidence

placed in the third party will not be betrayed,” Miller,

425 U.S. at 443.20

The judicially created third-party doctrine is not

only at odds with the Fourth Amendment’s original

public meaning but departs downward from the

baseline protections enshrined in it and this Court’s

jurisprudence. See Ex parte Jackson, 96 U.S. at 733

(regarding letters: “Whilst in the mail, they can only

be opened and examined under like warrant,” despite

being voluntarily placed in possession of a

government agency.). Smith and Miller represent a

constitutionally dubious gloss on “Katz that lets the

government search almost whatever it wants

whenever it wants.” Carpenter, 585 U.S. at 391

(Gorsuch, J., dissenting). However this Court chooses

to resolve the question presented, the third-party

doctrine should play no role in the analysis. The thirdparty doctrine should not be kept “on life support” or

further judicially glossed “with a new and

multilayered inquiry that seems to be only Katzsquared.” Id. at 405 (Gorsuch, J., dissenting). And this

case presents an ideal opportunity to narrow or

repudiate it and “reconsider the premise that an

20 At minimum, Smith and Miller should only apply as exceptions

to Katz, not to the property-based approach. See Carpenter, 585

U.S. at 398 (Gorsuch, J., dissenting). And as Justice Kennedy

noted in Carpenter, “Miller and Smith may not apply when the

Government obtains the modern-day equivalents of an

individual’s own ‘papers’ or ‘effects,’ even when those papers or

effects are held by a third party,” including as “a bailment[.]”

Id. at 332–33 (concurring).

22

individual has no reasonable expectation of privacy in

information voluntarily disclosed to third parties.”

Jones, 565 U.S. at 417 (Sotomayor, J., concurring)

(citations omitted).

Smith and Miller, taken too far, bless the creation

of an Orwellian surveillance state with tracking and

monitoring technologies. Under the logic of Smith and

Miller, “the Constitution does nothing to limit

investigators from searching records you’ve entrusted

to your bank, accountant, and maybe even your

doctor.” Carpenter, 585 U.S. at 387 (Gorsuch, J.,

dissenting). “The third party doctrine presents one of

the most serious threats to privacy in the digital age.”

Daniel J. Solove, Fourth Amendment Codification and

Professor Kerr’s Misguided Call for Judicial

Deference, 74 Fordham L. Rev. 747, 753 (2005).

“This approach is ill suited to the digital age[.]”

Jones, 565 U.S. at 417 (Sotomayor, J., concurring).

And “wooden application” of this doctrine leads down

a “slippery slope[.]” United States v. Davis, 785 F.3d

498, 537 (11th Cir. 2015) (en banc) (Martin, J.,

dissenting). As Judge Tymkovich has observed in

applying the doctrine to reject a pre-Carpenter

challenge to collection of CSLI, there is reason to “fear

the Orwellian-style surveillance state that could

emerge from unfettered government collection of

personal data.” United States v. Thompson, 866 F.3d

1149, 1159 (10th Cir. 2017), cert. granted, judgment

vacated, 138 S. Ct. 2706 (2018). This concern is only

23

amplified by the advent of geofence warrants and

other surveillance technologies on the horizon.21

This case illustrates the dangers the third-party

doctrine poses. Yet, in the en banc decision below,

seven (of fifteen) judges concluded that no search

within the meaning of the Fourth Amendment

occurred, see Pet. App. 72a (Richardson, J.,

concurring), finding that “[t]he third-party doctrine

. . . squarely governs this case,” Pet. App. 95a

(Richardson, J., concurring). The panel similarly

concluded that the third-party doctrine controls, and

as a result no Fourth Amendment search occurred.

See Pet. App. 170a. Amicus respectfully believes that

was error, showcasing why this Court should revisit

and repudiate the third-party doctrine, at least as

applied to the property-based inquiry.22

“[I]t would be a grave misjudgment to conflate an

individual’s limited disclosure to Google with an open

invitation to the state.” Pet. App. 64a–65a (Wynn, J.,

concurring). It cannot be the case that the Fourth

Amendment has no application whenever someone

voluntarily discloses information to a third party or

“Geofence intrusions are . . . low-value fishing expeditions,”

Pet. App. 217a (Wynn, J., dissenting), which “present the exact

sort of ‘general, exploratory rummaging’ that the Fourth

Amendment was designed to prevent.” Smith, 110 F.4th at 837.

22 The sky would not fall. Nor would doing so prevent law

enforcement from using and relying on confidential informants—

the raison d’être of the doctrine prior to Katz. See generally Amy

L. Peikoff, Of Third-Party Bathwater: How to Throw Out the

Third-Party Doctrine While Preserving Government’s Ability to

Use Secret Agents, 88 St. John’s L. Rev. 349 (2014).

21

24

that property rights magically disappear—especially

when the third party may also have a property

interest in the data. “The Constitution deals with

substance, not shadows.” Cummings v. Missouri, 71

U.S. (4 Wall.) 277, 325 (1867). So too here. The mere

fact that a person has provided the modern-day

equivalent of “papers” and “effects” to a third party

does not transmute the meaning of the word “search”

in the Fourth Amendment. Nor does it matter that the

property of two parties has been searched. This may

affect whether the “search” was “unreasonable” or the

related question whether it implicates a person’s

Fourth Amendment rights as a threshold matter. But

a search is a search, regardless of who is in physical

possession of the property that is searched.

CONCLUSION

For the foregoing reasons, this Court should

reverse the judgment below.

Respectfully submitted,

Michael Pepson

Counsel of Record

Cynthia Fleming Crawford

AMERICANS FOR PROSPERITY FOUNDATION

4201 Wilson Blvd., Ste. 1000

Arlington, VA 22203

(571) 329-4529

mpepson@afphq.org

Counsel for Amicus Curiae

March 2, 2026