The Inviolate Home: Housing Exceptionalism in the Fourth Amendment

Stephanie M. Stern - Chicago-Kent College of Law

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The notion of the inviolate home and the paramount importance of constraining government search of the home are cherished tenets of constitutional law and scholarship.  The doctrinal solicitude and judicial rhetoric surrounding the home reflect a belief that residential privacy rights are both psychologically and politically vital.  This “housing exceptionalism” has muddled Fourth Amendment jurisprudence with respect to residential property and, more broadly, as residential and nonresidential spaces have competed for Fourth Amendment protection.  Specifically, the Fourth Amendment’s property-oriented, and specifically home-focused, approach to criminal search and seizure has produced residential protection that is at times too strong and too blunt.

The Supreme Court has long defended the home as a sacred site at the core of the Fourth Amendment.  Similarly, criminal-procedure scholars and privacy theorists almost invariably support stringent and expansive protection of the home.  In a jurisprudence focused on privacy versus publicity, the home is the quintessential private space.  Indeed, the Court’s rhetoric (if not invariably its decisions) characterizes the “physical entry of the home [as] the chief evil against which the wording of the Fourth Amendment is directed.” 1  At times, the protection of privacy rights in the home has been so expansive as to appear absurd, with lawyers vigorously contesting whether suspects’ dog houses receive Fourth Amendment protection.  To be clear, the home does not receive absolute search protection, and Fourth Amendment doctrine encompasses exceptions in tension with the Court’s protectionist rhetoric.  But, on the whole, residential rights receive comparatively robust (and property-focused) protection relative to many other contexts of criminal search.

The Article on which this Editorial is based challenges two hallmarks of housing exceptionalism.  First, privileging the physical home has adulterated Fourth Amendment doctrine by extending the home’s expansive “umbrella” of Fourth Amendment protection beyond the relational and domestic core of residential spaces.  This approach has contributed to the inefficient allocation of privacy protection relative to both individual harm and the societal interest in crime control.  Moreover, as the rhetoric of home protection has strained criminal justice enforcement, other Fourth Amendment doctrines, such as publicity and the plain-view seizure doctrine, have moved to the jurisprudential fore and further contorted privacy allocation.  Second, within core domestic and relational spaces, many cases have afforded expansive, formalistic protection to the physical home rather than on the basis of substantive privacy interests and intimate association.

Disturbingly, the (over)protection of the home has justified decisions extending less protection in other contexts.  This cuts against the common intuition that if more privacy is a good thing, then constitutional solicitude for the home is also a good thing because it affords protection in an age of shrinking privacy.  In Dow Chemical Co. v. United States, the Supreme Court held that aerial surveillance of a commercial plant was not subject to Fourth Amendment protection because the plant complex was not analogous to the “‘curtilage’ of a dwelling” and because, unlike homeowners, businesses do not have an interest in being free from inspection.2 The Court suggested that it would have extended protection if the complex had been a residence, “where privacy expectations are most heightened.” 3  The Court has also justified the less rigorous protection of automobiles in part upon their dissimilarity to the private space of the home. In a similar vein, some scholars charge that technological searches and restraints, such as biometric scanners and DNA collection, do not receive protection because they do not take the form of physical intrusions on sacred spaces.  Of course, residential search cases are not the sole reason other contexts receive less protection; rather, the case law illustrates how residential search doctrine has indirectly facilitated precedents that limit protection elsewhere.

Despite these costs, housing exceptionalism has thrived because of the assumption that Fourth Amendment protection of the physical home effectively safeguards critical personal and political interests.  Psychological and historical evidence reveal a more complex and equivocal picture.  With respect to the psychological claims, there is little objective evidence that individuals require the utmost protection from all types of residential privacy incursions or that privacy is primarily a spatial or territorial construct.  Notably, privacy expectations vary widely by culture and context, and people are surprisingly adaptable to incursions on their physical privacy.  There is also no evidence that residential privacy reflects an innate, biological drive to defend against territorial intrusion.  Humans are evolutionarily social beings, and the flexibility of their property arrangements (and defense of territorial property) reflects this pro-social orientation.  The empirical evidence also does not support strict protection of the physical home based on a personhood interest or the assumption that the home’s inviolacy is vital to identity and psychological flourishing.  Even subjective expectations of privacy suggest a relative view of home privacy and call into question the uniform privileging of varying residential interior spaces and curtilage.  Citizens ascribe much greater intrusiveness to searches of bedrooms, for example, than searches of home garages, curbside residential garbage, or surveillance of backyards.

The political and historical necessity of housing exceptionalism also falters upon closer examination.  The claim that homes are uniquely vulnerable to police harassment and overreaching because they contain so much potential evidence is unconvincing—overreaching is a more troubling issue in computer and database searches than in residential ones.  Moreover, the way to protect against police overreaching in residential searches is not through housing exceptionalism but by undoing or limiting the plain-view seizure doctrine.  Most critically, residential search protection does not provide citizens an effective haven from government intrusion: housing exceptionalism has tended to increase government’s reach by justifying less protection, jurisprudentially and politically, in more prevalent contexts of search and seizure.  Even the rationale of original intent, a constant in the Supreme Court’s holdings, is subject to challenge.  The historical record reveals a more complex view of the intentions of the Framers than the Court depicts.  The protectionist sentiment toward the home in the Founding Era addressed the specific historical context of customs and revenue searches of houses under general warrants or writs of assistance.

The theory of privacy advanced in this Editorial and the Article on which it is based seeks to reorient Fourth Amendment residential privacy protection from the physical home to a stronger, more consistent doctrinal focus on substantive privacy interests.  I employ the term substantive privacy as distinct from substantive due process, although substantive privacy may, on occasion, overlap conceptually with areas of substantive due process protection.  A substantive approach to residential search addresses relational interests and the disruption and infringement of domestic life and intimate association from search activity.  This inquiry emphasizes objective harm, but subjective expectations of privacy do figure in this analysis as Katz4 requires (and as befits the fact that searches that individuals perceive as extremely intrusive often correlate with objective harm).  Where there is on an ex ante, categorical basis only minimal perceived intrusiveness and no evidence or reason to suspect objective psychological harm, there is serious question whether the highest standard of probable cause Fourth Amendment protection should apply.

In particular, I focus on intimate association and argue that it is a dominant—but not exclusive—substantive interest in residential search.  Privacy of intimate association focuses on the ex ante, categorical likelihood that search activity will disrupt domestic life, engender interpersonal conflict, reveal personal information that is private to and constitutive of relationships, and chill socialization and intimacy.  This proposal is not revolutionary.  In my view, this interest derives from the Fourth Amendment and specifically from the holding in Katz that the Fourth Amendment safeguards expectations of privacy in order to protect “people, not places.”5  Long-established precedents hold that “the home is sacred . . . because of . . . privacy interests in the activities that take place within.”6  Yet, judicial application of this principle has been inconsistent.

The basic project of the Article on which this Editorial is based, to reorient residential search doctrine from the physical home to substantive privacy interests and intimate association, is accomplishable in a few ways.  First, we may conclude that certain contexts of residential search are not, as a categorical matter, likely to harm substantive privacy (or objectively reasonable subjective expectations in the language of Katz) and exclude them from Fourth Amendment protection.  This option has the potential to eliminate some of the most attenuated and questionable instances of search protection.  However, it may open the door to unrestrained search activity and provides limited options for controlling repeat searches or ongoing surveillance.  A second option derives from Christopher Slobogin’s proposal for a Fourth Amendment proportionality principle.7  The proportionality principle enables a standard of reasonableness less than probable cause in some instances based on the strength of the government justification relative to the intrusiveness of the search.  This proposal has interesting applications to the present project of calibrating search protection to substantive privacy harm.  In certain cases, applying a reasonableness balancing approach to residential searches will entail uncertainty as to the applicable standard for ambiguous search contexts; police may opt for caution in these cases and secure warrant protection (which is not a bad result).  Notably, similar uncertainty exists in the present doctrine, particularly as lower courts implement it.

I consider illustrative examples of potential reforms to refocus Fourth Amendment protection on substantive personal and interpersonal privacy.  For example, the attenuated privacy interest in protection from thermal scans makes this type of search one of the better candidates for reclassification as a non-search.  There is little evidence that revealing heat patterns infringes upon subjective expectations of privacy or causes objective psychological harm.  Indeed, this information is not that different from the data that utility companies gather regarding energy and water usage.  The most compelling reason to hesitate before removing thermal scans from Fourth Amendment protection is not the privacy interest in heat patterns but the potential for police to employ thermal scans to wrongly target, harass, or discriminate or, at the other extreme, install them on every curbside.  However, this problem does not inevitably require a constitutional solution: a variety of potential remedies are available, including statutory constraints, internal police rules, or liability for discriminatory search.

A substantive model of residential privacy similarly calls into question the focus on physical property and the inconsistent judicial attention to intimate association and domestic life in curtilage cases.  In a postindustrial society, the protected curtilage areas of the outer yard and outbuildings, for example, are often places of attenuated privacy interests in intimate association and domestic life.  One option for reform is to consistently and explicitly accord predominant (or even exclusive) weight to the third factor of the four-part test for determining protected curtilage articulated in United States v. Dunn: the nature of the area’s use with respect to domestic life and intimate association. 8  This is a practical revision, not a theoretical departure from key Court precedents, except to the extent that I propose weighting this factor even more strongly than most precedents suggest.  Another alternative, which better addresses the problem of too much unregulated search, is to pair a modified version of the Dunn test, which focuses on the nature of the area’s use, with a more flexible, fine-grained approach to reasonableness balancing based on the ex ante, categorical strength of substantive privacy interests (e.g., a circumscribed area directly surrounding the house, decks, patios, and comparable outdoor spaces could retain probable cause protection while storage outbuildings, garages, and garbage within the curtilage could be subject to a reduced standard of reasonable suspicion).

In conclusion, the Fourth Amendment has disproportionately protected residential privacy rights on the basis of property-law concepts and the rhetoric of the inviolate physical home.  Housing exceptionalism has decreased the coherence and efficiency of the Fourth Amendment and derailed the doctrine from the goal of protecting citizens from substantive privacy harm.  Contrary to the current understanding of Fourth Amendment doctrine, I contend that neither psychological and political exigency nor original intent justify this privileging of the physical home.  This Editorial and the Article on which it is based consider ways to replace housing exceptionalism and formalist property approaches with a robust and consistent doctrinal focus on harms to substantive privacy and intimate association.

Acknowledgments:

Stephanie M. Stern is an Associate Professor of Law, Chicago-Kent College of Law, Illinois Institute of Technology.

This Legal Workshop Editorial is based on Ms. Stern’s Article: Stephanie M. Stern, The Inviolate Home: Housing Exceptionalism in the Fourth Amendment, 95 CORNELL L. REV. 905 (2010).

Copyright © 2010 Cornell Law Review.

  1. United States v. U.S. Dist. Court (Keith), 407 U.S. 297, 313 (1972).
  2. Dow Chem. Co. v. United States, 476 U.S. 227, 238–39 (1986).
  3. See id. at 237 n.4.
  4. Katz v. United States, 389 U.S. 347 (1967).
  5. Id. at 351 (emphasis added).
  6. See, e.g., Segura v. United States, 468 U.S. 796, 810 (1984).
  7. See CHRISTOPHER SLOBOGIN, PRIVACY AT RISK 38–39 (2007).
  8. 480 U.S. 294, 301 (1987).

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