Trump's Supreme Court Pick: Not Great On The 4th Amendment, But His Take On The Third Party Doctrine Has Already Gone Out Of Style

Donald Trump gets to roll the Supreme Court dice twice this term (so far!) and he's chosen Judge Brett Kavanaugh of the DC Circuit Appeals Court for the position. Gallons of digital ink have been spilled speculating about his impact on abortion rights, gun control, and immigration. We're also concerned about Kavanaugh's take on two of our favorite amendments: the First and Fourth.

Mike Masnick is taking on the First Amendment implications of Kavanaugh's seat on the Supreme Court bench (Karl Bode has also taken a shot here), so I'll be taking a look at Kavanaugh's record on the Fourth. The most famous case Kavanaugh delivered a ruling on pertaining to the Fourth Amendment also pertains to the Deep State NSA and its bulk collection of phone records.

In denying Larry Klayman's challenge of the Section 215 program, Kavanaugh wrote:

I vote to deny plaintiffs' emergency petition for rehearing en banc. I do so because, in my view, the Government';s metadata collection program is entirely consistent with the Fourth Amendment.

Why is it "entirely consistent?" Because Third Party Doctrine.

The Government's collection of telephony metadata from a third party such as a telecommunications service provider is not considered a search under the Fourth Amendment, at least under the Supreme Court's decision in Smith v. Maryland...

Also, because National Security:

[T]he Government's metadata collection program readily qualifies as reasonable under the Supreme Court's case law. The Fourth Amendment allows governmental searches and seizures without individualized suspicion when the Government demonstrates a sufficient "special need" - that is, a need beyond the normal need for law enforcement - that outweighs the intrusion on individual liberty.

This take on the Third Party Doctrine is now outdated, thanks to both the restructuring of the Section 215 program via the USA Freedom Act and the Supreme Court's recent Carpenter decision. All third party records are not created equal. While the Supreme Court did not roll back the Third Party Doctrine established with Smith v. Maryland, it did remove its coverage of cell site location info, ruling that warrantless acquisition of these records allows law enforcement to use citizens' cellphones as government tracking devices via records collected and stored by service providers. This is going to cause a bit of friction is national security is implicated again, given Kavanaugh's past ties to President Bush II and natsec program authorization as in-(White)house counsel.

It's not all bad news. This paper by Orin Kerr, discussing the "mosaic" approach to privacy expectations and the Fourth Amendment, notes Justice Scalia borrowed language from another rehearing denial by Kavanaugh to determine the placing of a GPS tracking device on someone's vehicle was a trespass necessitating the use of a warrant.

The Supreme Court unanimously agreed that Jones had been the subject of a Fourth Amendment search but divided sharply on why. Writing for a five-justice majority, Justice Scalia followed Judge Kavanaugh's suggestion and held that the installation of the GPS device was a search because it was a trespass on the "effects" of the car.

This perhaps suggests Kavanaugh will follow the other Trump appointee, Justice Gorsuch, in viewing Fourth Amendment issues dealing with tech advancements in a more traditional manner. Not necessarily a bad thing and definitely an interesting tack to take -- terming records generated by devices (but stored by third parties) as "property" still at least partially owned by device users. This approach could continue to carve away at the Third Party Doctrine in the coming years if adopted in other cases.

Other than that, Kavanaugh's position in the DC Court of Appeals gave him the chance to handle a number of cases dealing with the Fourth Amendment, but there doesn't appear to be many pertaining to issues the Supreme Court hasn't already addressed. PoliceOne did hunt down a few of his takes on Terry stops. In both cases, Kavanaugh came down on the side of law enforcement.

In a 2007 case, U.S. v. Bullock, 570 F. 3d 342, Judge Kavanaugh wrote the majority opinion upholding the frisk of a motorist who was stopped for an illegal U-turn and could not produce a vehicle registration or provide the name of the vehicle's owner. The driver was ordered to step out of the vehicle and when the officer frisked him for weapons, he felt a hard object in the driver's pants that the officer believed to be a weapon. When the officer searched the pants, he found crack cocaine and a scale. Judge Kavanaugh's majority opinion considered the nature of the initial stop, the officer's founded belief that the vehicle was stolen and the risk factor involved in vehicle stops to uphold the initial frisk and subsequent search of the driver.

In a subsequent stop-and-frisk case before the D.C. Circuit Court of Appeals, U.S v. Askew, 529 F. 3d 1119 (2008), Judge Kavanaugh wrote a dissenting opinion when the court held that police officers violated the Fourth Amendment when they unzipped a suspected armed robber's jacket and found a gun. The police action of unzipping the coat was done to facilitate eyewitness identification, but Judge Kavanaugh wrote that the unzipping of the coat could be justified as a protective measure under the contours of Terry v. Ohio.

While these are a concern, various courts have already tangled with stop-and-frisk policies, finding it's not so much the stop itself that's problematic, but how the programs are carried out. In every case, courts (and the DOJ itself) have determined the programs disproportionately target minorities. Without reasonable suspicion, these stops are unconstitutional. That's been the crux of the issue. The tendency to engage in biased policing only compounds the problem.

Kavanaugh's appointment probably won't stack the deck in favor of law enforcement on these issues. He's not going to be anyone's idea of a black-robed civil liberties activist, but he's also headed to a court that has surpassed expectations on Fourth Amendment protections in recent years. Old precedent on tech-focused Fourth Amendment issues is no longer undisturbable, thanks to the far-reaching implications of the Supreme Court's Riley decision. Hints of a property-based rationale in a Kavanaugh decision suggests he may find alternate ways to protect privacy without having to disturb the Third Party Doctrine. That would be unfortunate, but better than allowing prior Doctrine-based precedent to remain undisturbed along with the doctrine itself.