Shhh . . . If We Don’t Talk About It, Might It Cease to Matter?

In a case that involves the most private of places—the home—where the Fourth Amendment has been said to draw a firm, but bright line at the threshold, the Supreme Court held that police officers may enter without a warrant when they fear the occupants might be destroying the very thing they otherwise needed consent to inspect. An important value protected by the Fourth Amendment is privacy, but the word “privacy” makes an appearance only once in Justice Alito’s majority opinion in the recent decision in Kentucky v. King. Privacy’s appearance comes in the highly problematic concluding section of the opinion: “This holding provides ample protection for the privacy rights that the Amendment protects.” Justice Alito makes this conclusory statement despite the absence of any discussion in the opinion of the privacy rights at stake. The opinion is instead replete with discussion about the needs of law enforcement. This pattern of competing narratives—the importance of providing clear rules to enable police practice in contrast to focusing on the value of protecting privacy—seems to be tilting more towards the former to the exclusion of the latter, as I have explored in depth elsewhere. Sometimes the issue is presented as requiring courts to balance the needs of law enforcement with the privacy rights of individuals. But it is difficult to do such balancing when the only appearance “privacy” makes is in an unsupported conclusion that privacy rights have been given “ample protection.”  How they have been given such protection remains unspecified.

What is even more interesting is the grammar of the sentence in which “privacy” appears. Notice that the reference is to “the privacy rights that the Amendment protects.” Justice Alito, as we have seen, does not tell us what those rights are “that the Amendment protects” (whatever they happen to be).  Indeed, his statement is consistent with “the privacy rights that the Amendment protects” being a null set. In that case, it is naturally quite easy for the opinion to be consistent with the “privacy rights that the Amendment protects.” It doesn’t protect any. Consistent with Justice Alito’s failure to mention the value of “privacy” in his more forceful dissent in Arizona v. Gant (where Justice Stevens, writing for a majority, balanced law enforcement needs against a robust understanding of the privacy rights at stake in favor of a rule that protected more privacy), one has the sense that at least some members of the Court think that if we don’t talk about privacy, it might cease to matter. After all, the concept is not explicitly mentioned in the text. Shhhh . . . .

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3 Responses

  1. Sadee Bear says:

    All well and good, unless you live in California, than forget about cops trying to go get a warrant before they kick down your door: http://lawblog.legalmatch.com/2011/05/23/californias-anti-piracy-bill-would-allow-warrantless-searches/

  2. Orin Kerr says:

    Thomas, I’m curious, do you agree or disagree with the rule the Court handed down in King? Regardless of the rhetoric of the opinion, I thought the rule the Court announced was actually relatively sound — and considerably more protective of privacy rights than the government wanted. Indeed, the rule the Court adopted was actually similar in result to what the defendant wanted. The majority read the record differently than the defense did, but the rule wasn’t actually that far off of the defense rule in terms of its results.

    Oh, and by way of full disclosure, I provided some assistance to the defendant in the case.

  3. Thomas Crocker says:

    Orin, I disagree with the rule. In trying to say why, I ended up writing another, long post on the opinion. I have difficulty separating the rhetoric, logic, and content of the opinion to discern a sound rule. But, see the longer post for my attempt to work this out.