From heroin in rental car trunk to stolen motorcycle, Supreme Court defends privacy rights

Richard Wolf | USA TODAY

WASHINGTON — Terrence Byrd was arrested in Pennsylvania four years ago with body armor and 49 bricks of heroin in the trunk of a rental car he wasn't authorized to drive.

Ryan Collins was picked up a year earlier in Virginia with a stolen, orange-and-black motorcycle that twice had sped away from police.

Both men contested their arrests all the way to the Supreme Court, which last month ruled overwhelmingly in their favor for the same reason: Their privacy was breached.

In Byrd's case, the justices ruled 9-0 that his absence from the rental policy did not give police the right to search the car. Collins, they reasoned by an 8-1 margin, was protected because police invaded his girlfriend's private property without a warrant.

The dual decisions represent the latest examples of a trend at the high court — dominated by conservatives — to defend individuals' right to privacy even when they are violating the law.

The justices' vigorous defense of Fourth Amendment protections against search and seizure has been fueled in part by their skepticism of government power, as well as the rapid development of increasingly intrusive technology.

Thus it was that in 2012 they ruled unanimously that police could not attach a GPS device to a car without a warrant in order to monitor its driver's movements. Two years later, they again ruled unanimously that police need a warrant to search the contents of a criminal suspect's cellphone.

And in the coming weeks, the justices will decide whether police can track the past locations of suspects' cellphones for weeks or months in order to connect them to crimes under investigation. From the sound of oral arguments last November, the answer appeared to be no.

“They’re no longer disagreeing on whether there’s a right to privacy," says Marc Rotenberg, president of the Electronic Privacy Information Center, which seeks to protect privacy and civil liberties in the information age. "You're finding a high level of agreement on both wings of the court."

Seeing through walls

This week's ruling for the motorcycle thief was written by Justice Sonia Sotomayor, the court's leading defender of privacy rights. While the court has ruled that vehicles can be searched without a warrant if a crime is suspected — in part because they can be used to escape — "the scope of the automobile exception extends no further than the automobile itself," she said.

Sotomayor has been on the side of privacy in every significant case the court has heard in recent years. She also wrote the most expansive opinion in the GPS case, warning then about the potential reach of technology.

"GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations," she said.

The ruling in favor of the heroin-toting motorist was written by Justice Anthony Kennedy, who said he had a "reasonable expectation of privacy" despite not being listed on the rental agreement.

"Few protections are as essential to individual liberty as the right to be free from unreasonable searches and seizures," Kennedy said.

The justices have come a long way since the 1980s, when "the government virtually always won," Supreme Court and appellate litigator Andrew Pincus says. “There was a war on drugs, lots of concern about crime and law enforcement."

Today's court is wary of big government and concerned that "the advent of technology and the things the government can do as a result of it don’t override the privacy that we’ve taken for granted,” he says.

Since 2001, the court has leaned toward protecting privacy from modern technology. That year, it ruled 5-4 that police needed a search warrant to use a thermal imaging device outside a private home to detect the heat required to grow marijuana inside.

Chief Justice John Roberts referred to that case a decade later in identifying the clash between privacy and technology as "the real challenge for the next 50 years."

"What does the Fourth Amendment mean when you can, through technology, literally see through walls with heat imaging?" he said.

From GPS to DNA

But the trend has not been without interruption. In 2013, the court ruled 5-4 that police can swab the cheek of someone arrested for a serious offense to obtain DNA — which then can be matched against databases of unsolved crimes.

The late Justice Antonin Scalia, a fierce defender of Fourth Amendment rights who wrote the thermal imaging and GPS decisions, was not pleased.

"I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspection," he wrote.

In the last five years, the court has ruled that police need a warrant to enter the area surrounding a private home, test a driver's blood alcohol level, thumb through hotel occupancy records and circle a car with a drug-sniffing dog.

The next big test will come this month when the justices rule in Carpenter v. United States, the case in which police used data obtained without a warrant from wireless carriers to reveal where Timothy Carpenter had been over a 127-day period.

Lower courts upheld the search of cell tower records under the theory that people who give information to third parties, such as wireless carriers, have no expectation of privacy. But that doctrine, Sotomayor warned in 2012, may be outdated.

A ruling in Carpenter's favor, says John Wesley Hall, past president of the National Association of Criminal Defense Lawyers, would be "a simple recognition that the Fourth Amendment was supposed to be a protection between us and the government all along."

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