Alex Siegel
Information Privacy Law
Professor Ira Rubinstein
March 21, 2017
Judge Gorsuch and the Fourth Amendment
United States Supreme Court nominee Neil Gorsuch is perhaps best known for being two things: a controversial replacement for President Barack Obama’s candidate, Merrick Garland, and a judge selected precisely because his jurisprudential philosophy hews strongly conservative. However, when it comes to the Fourth Amendment – an especially unsettled body of law given advancements in modern technology – Gorsuch’s record has proven less predictable than his generally originalist philosophy might suggest.
While Gorsuch has sided with the government more often than not (which is the case for most appellate judges across the ideological spectrum), his record includes various instances in which Gorsuch sided with citizens against unlawful government searches. Gorsuch has diverged from a traditionally conservative law-and-order approach to the Fourth Amendment by siding with a child pornography trafficker (United States v. Ackerman) and a methamphetamines user (United States v. Carloss) who were both subjected to searches that Gorsuch found objectionable.
Moreover, while Gorsuch has extended Justice Scalia’s common law trespass approach to the Fourth Amendment with respect to searches of homes and personal property, he has favored something closer to a totality of the circumstances test when ruling on Terry stops.
Scalia believed the reasonable-expectation-of-privacy test developed in U.S. v. Katz was an addition to the common law trespass test, not a substitution for it. Gorsuch has held similarly in cases where personal property has been subjected to an alleged search, applying the trespass test in both the physical (Carloss) as well as digital (Ackerman) realms.
However, in United States v. Nicholson, Gorsuch dissented from the majority’s view that an officer’s mistake of law could not justify a Terry stop. He advocated for a case-by-case approach to determine whether the government had acted reasonably given the circumstances, taking into account the possibility of human error. Gorsuch’s minority approach, later adopted by the Supreme Court in Heien v. North Carolina, suggests a reluctance to use an originalist method to limit government discretion with respect to Terry stops. Gorsuch has regularly sided with law enforcement in their use of stops and seems more protective of the current doctrine, with all its discretion, than he is of traditional common law notions of trespass.
While Gorsuch’s Fourth Amendment jurisprudence certainly indicates a law-and-order approach, his views aren’t as consistently conservative as Scalia’s were. His record doesn’t indicate an interest in developing a unified originalist approach to the Fourth Amendment. Moreover, unlike Scalia, who was predisposed to finding exceptions to the trespass test for law enforcement efforts (as he did in Florida v. Jardines and United States v. Jones), Gorsuch has proved more willing to view law enforcement searches with some level of skepticism.
Sources:
https://www.nytimes.com/2017/02/02/us/politics/neil-gorsuch-supreme-court-fourth-amendment.html?_r=0
https://www.stanfordlawreview.org/online/spotlight-fourth-amendment/