Order, technology, and the constitutional meanings of criminal procedure.

• Author: Crocker, Thomas P.
• Position: I. The Implications of Prioritizing Order-Maintenance Policing through II. United States v. Jones on Property and Technology, p. 685-714 - Symposium on Cybercrime

TABLE OF CONTENTS I. THE IMPLICATIONS OF PRIORITIZING ORDER-MAINTENANCE POLICING II. UNITED STATES V. JONES ON PROPERTY AND TECHNOLOGY A. The Majority Opinion: Personal Property Rights as Protection Against Police Surveillance Technologies B. The Concurring Opinions: Protecting Privacy Against a Permeating Police Presence C. Order-Maintenance Policing and the Future of Jones III. KENTUCKY V. KING AND THE CONSTITUTIONAL MEANINGS OF CRIMINAL PROCEDURE A. Inverting Johnson: The Exception as Rule B. Knock, Knock: Consent and Deviance Under the Exception C. The Citizen-Created Exigency IV. THE CONSTITUTIONAL NORMS OF ORDERLINESS AND THE FUTURE OF TECHNOLOGY A. From King to After Jones B. Order and Constitutional Values V. CONCLUSION With new technologies accompanied by new roles for police in providing security and maintaining order, the Fourth Amendment's relevance to modern life is becoming increasingly tenuous. In fact, one federal appeals court judge recently announced the death of the Fourth Amendment. (1) Entrenched constitutional doctrine and technological advances have worked together to kill it. The Fourth Amendment protects only reasonable expectations of privacy, but the Supreme Court claims one cannot have an expectation of privacy in anything shared with another person--and we share practically everything. As a result, "the Fourth Amendment is all but obsolete." (2) The third-party doctrine, which removes Fourth Amendment protection from information shared with another person or entity, (3) and the circularity of expectations of privacy, which depend on both judicial and social interpretive practices, (4) have all but interred it. A dead Amendment combined with robust police practices may not augur a robust constitutional future in light of new technological and social practices. (5)

Perhaps it is too soon to eulogize the Fourth Amendment as Judge Kozinski does, though it is indeed in dire health as it struggles to be relevant to the changing technological means by which government may conduct surveillance of everyday activities. (6) Global-Positioning-System (GPS) tracking enhances the power of police to monitor everyday movements and activities of persons at increasingly lower cost. This doctrinal and technological backdrop makes the Supreme Court's ruling in United States v. Jones (7)--that police placement of a GPS tracking device on a vehicle without a warrant violates the Fourth Amendment--all the more important. Even here, the holding in Jones is limited to occasions when police physically occupy "private property for the purpose of obtaining information" (8) without a warrant, leaving many questions about future GPS use unanswered and, in the process, reviving the importance of physical intrusion, not simply "reasonable expectations of privacy," for Fourth Amendment analysis. (9) For example, in the absence of physical intrusion, how might the Constitution regulate GPS surveillance using cell phones or other devices already on a person or in an automobile? What constitutional values are at stake when police engage in temporally extended comprehensive monitoring of personal movements and transactions?

The problem surveillance techniques create for jurists and scholars alike is exacerbated by the fact that current Fourth Amendment doctrine has developed in the shadow of order-maintenance policing practices focused on visible social disorder in public space. Order-maintenance policing was inspired by James Q. Wilson and George Kelling's Atlantic Monthly article, Broken Windows, speculating that serious crime, as well as social decay, could be forestalled by more aggressive street-level police enforcement of minor criminal behavior such as vagrancy, panhandling, vandalism, and the like. (10) Order-maintenance practices in turn pressure constitutional doctrine to authorize greater police discretion and to rely on citizen consent or self-assertion to define the constitutional boundaries of searches and seizures while narrowing the scope of social practices deemed private. Technologically enhanced police practices may be able to discern ever more subtle and hidden forms of disorder, extending order-maintenance priorities into new spaces, including the home. In turn, facilitative doctrine enables the growth of new police practices that illuminate forms of disorder lurking in these freshly transparent spaces.

The problem technology creates for Fourth Amendment doctrine is therefore twofold. First, the problem is whether or how existing constitutional doctrines might apply to new technologies; but second, the problem is what conceptions of constitutional values, priorities, and policing practices will inform doctrinal development and choice. My claim is that no answer to the former issue will be adequate without tackling the latter. And to approach the conceptual issue, we must recognize that without fundamental revision of underlying values and purposes, future cases will be decided in light of the constitutional meanings of criminal procedure made available by the existing doctrinal frameworks that produced the Fourth Amendment's eulogy. Doctrinal tinkering will not suffice. Nor will the quietism produced by defending the status quo. (11) The stakes are high because social practices increasingly conflict with police expectations. And those expectations now encompass the ability of individual officials to acquire information and conduct surveillance by means once thought only possible for someone with a "god's eye view." (12)

To track an individual's movements in a car over a month would have once required considerable police resources, with officers conducting physical surveillance around the clock. Now, by simply attaching a tracking device to the underside of the bumper, a single police officer can sit comfortably in an office and accomplish the same end. What is the proper way to articulate the doctrinal issue and the constitutional values at stake in this technological advance? In Jones, the majority opinion looks no further than the fact that police conducted a "search" where they "physically occupied private property for the purpose of obtaining information." (13) For the majority, common law trespass formed a sufficient basis to decide this case without reference to the expectations of privacy or other interests the Fourth Amendment might protect. By contrast, Justice Sotomayor's separate concurrence and Justice Alito's concurrence for four Justices each rely on broader constitutional values of privacy and political freedom. What is at stake is unavoidably interpretive. Whether a two-day monitoring of a person suspected of committing a minor offense or a six-month monitoring of a terrorism suspect will violate a potential rule that "longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy" (14) requires construction of both the social and constitutional meanings of such police practices. Interpretation is not an abstract exercise of divining meaning from constitutional text isolated from the culture and practices that give it life. (15) Rather, interpretation is possible only in light of background priorities, practices, and values the Supreme Court has in view. Thus, the question for the future of the Fourth Amendment is not simply what doctrinal rules the Court should adopt. Rather, the question is how, and on what normative basis, the Court will construct the social and constitutional meanings of technologically enabled policing practices.

This Article explores how current Fourth Amendment doctrine, whether construed in terms of property rights or expectations of privacy, facilitates background order-maintenance conceptions of police practice. (16) Order maintenance becomes a more powerful, and an even more problematic, priority when it comes to electronic monitoring. The doctrinal model focuses on the personal interactions between citizens and police on the community street. Police officers are expected to respond to visible displays of social disorder. Visibility is therefore key to the broken windows approach. But technology alters what is visible. With more powerful tools that can make visible more subtle or hidden forms of disorder, the model of street-level police interaction changes as well. Since extended secret surveillance of a person's movements on public streets or electronic monitoring of a person's activities as revealed to third parties could each be conducted to ferret out the social disorder lurking beneath sequentially quotidian movements and activities, larger patterns of disorder indiscernible to the episodic street encounter can now be made visible. Only by looking at the bigger picture might the disorder become apparent to government officials, especially for more serious offenses requiring complex coordination. Government officials have already relied on this "mosaic theory"--that larger patterns of wrongdoing might lie hidden within everyday patterns--in other national security contexts. (17) Federal interests in protecting national security require information sharing with state and local police in order to discern crime patterns and to anticipate security threats. Because pursuit of this "mosaic theory" has involved state and local police, there is no barrier to adopting similar routine policing practices that seek to make visible the indiscernible disorder concealed behind apparent patterns of everyday orderly behavior. (18)

Current constitutional doctrine provides scant barriers to such permeating police practices. (19) Doctrine focuses on expectations of privacy--on information shared, searched, or withheld--not on how persons occupy physical spaces such as streets. As this Article argues, if courts extend the deference they afford everyday order-maintenance policing to the mosaic of electronic monitoring, then the Fourth Amendment will provide few protections against advancing search technologies. This...