The Wurie Case: Restoring The Property Basis Of The Fourth Amendment

Our firm recently filed an amicus curiae brief in the U.S. Supreme Court opposing the federal government’s claim that, after a person is arrested, police are entitled to search his cell phone without a warrant.

During oral argument on April 29, 2014, the Supreme Court will consider this issue in the context of not one, but two such cases.  The first case is United States v. Wurie, which was decided by the U.S. Court of Appeals for the First Circuit adverse to the government’s position.  The second case is Riley v. California, where the California courts ruled in favor of the government’s position. 

The government wants the Supreme Court to expand the scope of its “search incident to arrest” doctrine, arguing that a person arrested has no “reasonable expectation of privacy” in his cell phone and, therefore, that the government need not be required to obtain a warrant based on probable cause before conducting a search of the cell phone for evidence of the commission of some crime.

Almost five decades ago, by a five-to-four vote, the U.S. Supreme Court decided that the Fourth Amendment protected only a person’s “reasonable expectation of privacy.”  With that decision, the Court abandoned over 200 years of precedent, in which both English and American courts had ruled that the Fourth Amendment secured the fixed common-law property rights that citizens have in their “persons, houses, papers, and effects.”  Instead of adhering to these precedents anchored in the historic constitutional text, the Court substituted its own notions of individual privacy, expanding or contracting its scope in a long series of cases, increasingly bending constitutional protections to accommodate law enforcement. 

For some years, our firm has led a frontal assault on the Court’s “reasonable expectation of privacy” test to determine the scope of the Fourth Amendment.  We were even invited to write a law review article explaining why selecting the correct test is so important, and why the Court should return to the Fourth Amendment’s original property principles.

Why is this so important?

First and foremost, “privacy” is a term that does not appear in the U.S. Constitution.  In a legal context, it has no fixed meaning.  The notion of a “right of privacy” was first mentioned in legal writing in an 1890 article for the Harvard Law Review co-authored by Louis Brandeis. 

The notion of a “reasonable expectation of privacy” did not enter the Fourth Amendment lexicon until 1967, when Justice Brennan asserted that “the principal object of the Fourth Amendment is the protection of privacy, rather than property” (Warden v. Hayden, 387 U.S. 294, 304 [1967]).

After filing more than 85 briefs in the U.S. Supreme Court, we have learned that it makes no sense to spend time trying to argue about the meaning of a term like “privacy,” which has no historical constitutional context – since the Court will always decide that the term means whatever the justices want it to mean.  In fact, that is precisely why justices, like Justice Brennan, choose terms like “privacy” on which to base their tests – it frees them from the limitations of the constitutional text and enhances the scope of their arbitrary judicial power.  It is no coincidence that modern-day advocates of federal power embrace the opinions of Justice Brennan so that our elites can direct the nation to their utopian vision.

Moreover, under the privacy test, the “zones” protected by the Fourth Amendment narrow as the government’s technological capabilities and demonstrated intrusions in our personal life increase.  In a world where the government surveils everything, how could anyone have a “reasonable” expectation that the government is not surveiling any particular area of our lives?

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This post originally appeared on Western Journalism – Informing And Equipping Americans Who Love Freedom