A Republic, If You Can Keep It

by Neil Gorsuch

  Today’s case comes at us along similar lines but from a different vector. A home’s curtilage—that area “immediately surrounding and associated with the home”—is protected by the Fourth Amendment much like the home itself. So not only do officers need a warrant, exigent circumstances, or consent to enter a home, they also generally need one of those things to reach the home’s front door in the first place. Typically, of course, officers contend that their intrusion into the curtilage for a knock and talk is justified by the homeowner’s implied consent. And usually there’s no question about it, for the Supreme Court has recognized that the “knocker on the front door” normally supplies an implied “invitation or license” for visitors of all kinds to enter the home’s curtilage and knock at the front door. By placing a knocker on the front door (or, I’m sure, a doorbell next to it), the homeowner is traditionally said to invite even “solicitors” and “hawkers” to “approach the home by the front path, knock promptly, wait briefly to be received, and then (absent invitation to linger longer) leave.” For this same reason and to the same extent, the Court has explained, law enforcement agents, no less than anyone else, may approach the front door and seek entry.

  But what happens when the homeowner manifests an obvious intention to revoke the implied license to enter the curtilage and knock at the front door? When the owner literally substitutes the knocker with a No Trespassing sign, one smack in the middle of the front door? When she adds two more No Trespassing signs at the driveway’s mouth to the street, one on either side of the only clear access route from the street to the front door—and along the very route any visitor would use to approach the home? And when, for good measure, she posts still another No Trespassing sign between the driveway and the house? So that to enter the home’s front porch, its constitutionally protected curtilage, visitors would have to disregard four separate and plainly visible warnings that their presence is wholly unwelcome? May officers still—under these circumstances—enter the curtilage to conduct an investigation without a warrant and absent an emergency?

  That’s the question we’re asked to address today. Most ambitiously, the government suggests that its officers enjoy an irrevocable right to enter a home’s curtilage to conduct a knock and talk. On this view, a homeowner may post as many No Trespassing signs as she wishes. She might add a wall or a medieval-style moat, too. Maybe razor wire and battlements and mantraps besides. Even that isn’t enough to revoke the state’s right to enter.

  This argument seems to me difficult to reconcile with the Constitution of the founders’ design. We know that the Fourth Amendment, at a minimum, protects the people against searches of their persons, houses, papers, and effects to the same degree the common law protected the people against such things at the time of the founding, for in prohibiting “unreasonable” searches the Amendment incorporated existing common law restrictions on the state’s investigative authority. We know, too, that at the time of the founding the common law permitted government agents to enter a home or its curtilage only with the owner’s permission or to execute legal process. No trace of some sort of permanent easement belonging to the state (and state alone) can be found in the common law of the founders’ time. In fact, state officials no less than private visitors could be liable for trespass when entering without the homeowner’s consent.

  The government disputes none of this apparently dispositive authority. In fact, it doesn’t even address it. Instead, the government replies by pointing to the Supreme Court’s observation that officers usually enjoy the homeowner’s implied consent to enter the curtilage to knock at the front door. But nothing in that prosaic observation purported to upend the original meaning of the Fourth Amendment or centuries of common law recognizing that homeowners may revoke by word or deed the licenses they themselves extend. In fact, the Court took pains to emphasize that the implied license that might have permitted the officers to enter the curtilage in that case was the same common law license generally enjoyed by private visitors—one entitling the officers to do “no more than any private citizen might.”

  If we decline to adopt its main theory on appeal, the government asks us to entertain another alternative ground for affirmance. Accepting now for argument’s sake that the implied license to enter the curtilage extends no more to law enforcement agents than it does to other visitors, the government contends that No Trespassing signs aren’t the proper way to revoke it. According to the government, a homeowner may avoid a knock and talk only by hiding in the home and refusing to answer the door. Or maybe by opening the door and commanding officers to leave.

  This argument is no more persuasive than the last. Actually, it’s no different from the last. A homeowner who refuses to answer the door, or who opens it to say “go away,” does so after the officers have already entered the home’s front porch and knocked on the door—everything the implied license permits the officers to do. In the government’s two scenarios, then, a homeowner hasn’t revoked the license to enter the curtilage and knock at the front door so much as the officers have exhausted the terms of that license.

  Unsurprisingly, this variation on the theme finds no more of a place in the Constitution than the theme itself. The government points to the Supreme Court’s observation that a homeowner in response to a knock and talk may choose to refuse to answer the door or the questions put to him. But in endorsing that principle the Court hardly suggested that it was denying another—that it meant to deny the homeowner the power to revoke the implied license before visitors reach the front door.

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  RATHER THAN REJECT THE government’s two arguments and call it a day, my colleagues choose to pursue two (more) alternative arguments for affirmance all their own. For its part, the concurrence appears to take the view that No Trespassing signs cannot revoke the implied license in the “residential context” unless they are coupled with a “fence or other physical obstacle.” But the concurrence supplies no authority to support its judgment, and indeed there seems to be ample authority running the other way, suggesting that the common law at the time of the founding did not require a property owner to express his intent to revoke a license to enter in any particular way. Indeed, all that was traditionally required were “express words…or…an act…indicating an intention to revoke.” Nothing in this common law rule of decision required both notice by word (a sign) and notice by deed (a fence). In fact, despite the relatively low literacy rates in mid-18th century England and early America, there appears to be considerable authority suggesting that posted signs or other types of published notice could suffice as a matter of law to ward off unwanted visitors.

  In place of authority, the concurrence rests predominantly on certain intuitions about what “reasonable people” think. The concurrence suggests that “reasonable person[s]” do not consider No Trespassing signs, absent a fence or other obstacle, as speaking to the implied license to enter in the “residential context.” In the concurrence’s judgment, most people know that it’s illegal to “trespass” on private property, and they also know that it generally isn’t “trespassing” to walk up to the front door of a house and knock. So, the reasoning appears to go, “reasonable persons” visiting a residential neighborhood understand the particular words “no trespassing” to refer to conduct other than the exercise of the implied license.

  This intuitive appeal, though, seems to invite further problems of its own. First, the Fourth Amendment is, after all, supposed to protect the people at least as much now as it did when adopted, its ancient protections still in force whatever our current intuitions or preferences might be. Second, as a matter of fact, you can’t help but wonder if millions of homeowners (and solicitors) might be surprised to learn that even a long line of clearly posted No Trespassing signs are insufficient to revoke the implied license to enter a home’s curtilage—that No Trespassing signs have become little more than lawn art. Certainly the concurrence of
fers no evidence to support its intuition about social customs and the opposite intuition seems no less and maybe a good deal more defensible, especially in light of our common law heritage. Third, as a matter of logic, even on its own terms the concurrence’s argument fails to sustain the conclusion that fences or other obstacles are necessary to revoke the implied license in the residential setting. Consider. If a single No Trespassing sign communicates only the already obvious fact that trespassing isn’t permitted and says nothing that might be reasonably interpreted as revoking the implied license, how does the addition of a fence transform the message so drastically, as the concurrence supposes? And if adding a fence does transform the meaning of a single No Trespassing sign, then why can’t a large number of signs, collectively and strategically placed, have the same effect? The concurrence simply doesn’t say. Along similar lines, if, as the concurrence suggests, No Trespassing signs cannot revoke the implied license because they use the word “trespassing” and that term has become encrusted with a very particular meaning that just doesn’t speak to the implied license, what about signs that avoid the term and say instead Keep Out? Keep Off? Do Not Enter? Or how about this?

  THE IMPLIED LICENSE DISCUSSED

  BY THE UNITED STATES SUPREME COURT

  IN BREARD V. ALEXANDRIA, 341 U.S. 622 (1951)

  AND FLORIDA V. JARDINES, 133 S. CT. 1409 (2013)

  IS HEREBY REVOKED

  Respectfully, the concurrence’s argument doesn’t seem to suggest a rule requiring fences or other obstacles so much as a reason for differentiating between the precise text found on signs—in a way no statute or case I’ve found has seen fit to do—and simply avoiding the word “trespass” and its variants. And if that’s the case, you have to wonder if following the concurrence’s lead would do no more than invite a new cottage industry, one spitting out lawn signs with long and lawyerly (and no doubt less intuitive and commonsensical) messages instead of the tried and true “No Trespassing.”

  The majority opinion offers yet another alternative theory for affirmance. Addressing the three signs leading to the front porch, the majority begins by noting that they were posted on ground leading to the curtilage rather than on the curtilage itself. And this fact, it suggests, means a reasonable visitor wouldn’t have understood them to forbid entry into the curtilage. But it’s unclear why that conclusion follows from these facts. All three signs lined the path any visitor would follow (and the path the officers did follow) to reach the curtilage and front door. The signs came one upon the other, hard and in short order, and near the bounds of the curtilage itself. All were clearly visible and clearly unwelcoming. And from this it’s difficult to see how a reasonable visitor could have felt at liberty to venture into the curtilage.

  What’s more, at least one sign was undeniably on curtilage and clearly visible to those preparing to enter it. To be sure, the majority opinion finds this last sign insufficient, too, if for a different reason. The majority suggests that the terms of this particular sign were too ambiguous. But in large bold letters the sign said this:

  POSTED

  PRIVATE PROPERTY

  HUNTING, FISHING, TRAPPING, OR TRESPASSING

  FOR ANY PURPOSE IS STRICTLY FORBIDDEN

  VIOLATORS WILL BE PROSECUTED

  The majority opinion emphasizes the sign’s discussion of hunting, fishing, and trapping, and notes that those activities don’t usually take place on a front porch. From this, the majority opinion reasons, the sign could have been reasonably interpreted by a visitor as forbidding him only from engaging in these recreational activities elsewhere on the property and not as speaking to his entry into the curtilage where the sign was posted. But I would have thought it equally (or maybe even a good deal more) likely that a reasonable person—considering whether to enter a stranger’s front porch and staring at a large “PRIVATE PROPERTY” sign forbidding “TRESPASSING FOR ANY PURPOSE”—would take it as directed at him and his activities rather than as directed only at someone interested in hunting or fishing somewhere else on the property. Especially when there’s no evidence in the record that any hunting, fishing, or trapping took place in the yard of this home in the middle of town along a paved street.

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  WHETHER IN ARGUING THAT the state enjoys an irrevocable license to enter or in suggesting that No Trespassing signs are categorically insufficient to bar its agents, the government appears to be moved by the same worry: that if clearly posted No Trespassing signs can revoke the right of officers to enter a home’s curtilage their job of ferreting out crime will become marginally more difficult. But obedience to the Fourth Amendment always bears that cost and surely brings with it other benefits. Neither, of course, is it our job to weigh those costs and benefits but to apply the Amendment according to its terms and in light of its historical meaning.

  Besides, it is hardly the case that following the Fourth Amendment’s teachings would leave the government as bereft of lawful alternatives as it seems to suppose. The Amendment and the common law from which it was constructed leave ample room for law enforcement to do its job. A warrant will always do. So will emergency circumstances. After-the-fact consent may suffice if freely given. And, of course, there’s no need for consent when officers search only open fields rather than curtilage. Neither is there need for consent when officers enter curtilage for a non-investigative purpose. Our duty of fidelity to the law requires us to respect all these law enforcement tools. But it also requires us to respect the ancient rights of the people when law enforcement exceed their limits. In this case the two arguments the government offers to justify its conduct can claim no basis in our constitutional tradition. And, respectfully, I just do not see the case for struggling so mightily to save the government’s cause with arguments of our own devise—especially when what arguments we are able to muster suffer so many problems of their own and the benefits of exposing them to at least a modest encounter with the adversarial process seem so obvious.

  Carpenter v. United States

  This case deals with a new technology, your cell phone location data, and the government’s attempt to collect and search it without a warrant. Supreme Court decisions from the 1970s suggested that, once you give an item to a third party, you lose all Fourth Amendment protections in that item and the government can search it without a warrant. Because your cell phone location data is shared with your phone carrier, the government in this case argued that it should be able to search that data without a warrant under this so-called “third-party doctrine.” In this dissent from my first full term on the Supreme Court, I suggested that the original meaning of the Fourth Amendment demands more protection for the people and their “persons, houses, papers, and effects” than “third-party doctrine” affords. I then sought to sketch out what it might look like to return to the Fourth Amendment’s original meaning and what that meaning might hold for the question of cell phone location data.

  In the late 1960s this Court suggested for the first time in a case called Katz that a search triggering the Fourth Amendment occurs when the government violates an “expectation of privacy” that “society is prepared to recognize as ‘reasonable.’ ” Then, in a pair of decisions in the 1970s applying the Katz test, Smith v. Maryland and United States v. Miller, the Court held that a “reasonable expectation of privacy” doesn’t attach to information shared with “third parties.” By these steps, the Court came to conclude, the Constitution does nothing to limit investigators from searching records you’ve entrusted to your bank, accountant, and maybe even your doctor.

  What’s left of the Fourth Amendment? Today we use the Internet to do most everything. Smartphones make it easy to keep a calendar, correspond with friends, make calls, conduct banking, and even watch the game. Countless Internet companies maintain records about us and, increasingly, for us. Even our most private documents—those that, in other eras, we would have locked safely in a
desk drawer or destroyed—now reside on third party servers. Smith and Miller teach that the police can review all of this material, on the theory that no one reasonably expects any of it will be kept private. But no one believes that, if they ever did.

  What to do? It seems to me we could respond in at least three ways. The first is to ignore the problem, maintain Smith and Miller, and live with the consequences. If the confluence of these decisions and modern technology means our Fourth Amendment rights are reduced to nearly nothing, so be it. The second choice is to set Smith and Miller aside and try again using the Katz “reasonable expectation of privacy” jurisprudence that produced them. The third is to look for answers elsewhere.

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  START WITH THE FIRST option. Smith held that the government’s use of a pen register to record the numbers people dial on their phones doesn’t infringe a reasonable expectation of privacy because that information is freely disclosed to the third party phone company. Miller held that a bank account holder enjoys no reasonable expectation of privacy in the bank’s records of his account activity. That’s true, the Court reasoned, “even if the 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.” Together, those cases announced this categorical rule: Once you disclose information to third parties, you forfeit any reasonable expectation of privacy you might have had in it.