0:00:00.5 S?: Hear argument now in number 87-764, Florida v. Riley.

[music]

0:00:10.7 Rachel: Hey, everyone, this is Rachel, I produce 5-4. Leon is away. On this week's episode, Rhiannon, Michael, and Peter are talking about Florida v. Riley.

0:00:20.2 S?: In another decision today, US Supreme Court Justices ruled that police did not need a search warrant to fly over a suspected drug dealer's private yard in Florida. During their helicopter fly-by, police discovered a backyard marijuana patch.

0:00:32.7 Rachel: In this case, police claimed that flying a helicopter over someone's home to surveil them...

0:00:38.1 S?: Was not a violation of constitutional privacy rights.

0:00:41.3 Rachel: The Supreme Court agreed, in one of the holdings that set us on a course to where we are today, where the Fourth Amendment right to privacy is unevenly applied and police frequently use military grade surveillance technology and tactics to see into the private spaces of ordinary citizens. This is 5-4, a podcast about how much the Supreme Court sucks.

0:01:05.1 Peter: Welcome to 5-4, where we dissect and analyze the Supreme Court cases that have attacked our most cherished rights, like an autoimmune disease attacking healthy cells. [chuckle] I'm Peter, I'm here with Michael.

0:01:18.2 Michael: Hi, everybody.

0:01:20.4 Peter: And Rhiannon.

0:01:20.5 Rhiannon: Hey.

0:01:20.9 Michael: I'm appreciating the nuance of that metaphor or simile or whatever it is.

0:01:23.3 Peter: Thank you. That took me longer than my usual 30 seconds, this was more of a 45.

[laughter]

0:01:27.4 Michael: Nice.

0:01:30.5 Rhiannon: Thanks for all the effort you put in. Happy New Year.

0:01:32.8 Michael: Happy New Year.

0:01:34.6 Peter: Happy New Year. Things are going great in America, [laughter] so nothing else to say about this year. I feel like every time we come back from a break there's a new surge.

0:01:45.7 Rhiannon: Yeah, right?

0:01:46.3 Peter: We took a summer break, and then there was the Delta surge. Now there's Omicron. I'll tell you this, everyone on Twitter before COVID was making little jokes about being introverts, so like, "Haha, I'm such an introvert. I don't even go out on Friday nights." Well, I'm such an introvert that I'm doing fine right now. [laughter] That's how much of an introvert I am, alright? That's the true test.

0:02:07.0 Rhiannon: You win.

0:02:08.2 Peter: I'm getting stronger every day, alright? Everyone else is having breakdowns on airplanes and shit, just publicly embarrassing themselves. I'm 36 years old playing video games at 1:00 PM on a Wednesday.

[laughter]

0:02:22.6 Peter: This is what I've been dreaming of my entire life, [laughter] so I don't know why everyone's so upset.

0:02:26.9 Rhiannon: It's Peter's time to flourish.

0:02:29.5 Peter: That's right. And I'm sure you guys are doing great too.

[laughter]

0:02:34.6 Rhiannon: We can't relate. We'll just leave it there.

0:02:36.9 Michael: I can't say I can't relate to playing video games at 1:00 PM on a Wednesday, [laughter] but generally, that doesn't mean I'm flourishing. [laughter] I'll say.

0:02:46.8 Rhiannon: Do you really feel like you're thriving right now, Michael?

0:02:48.3 Michael: The implications for that go the opposite direction.

0:02:51.1 Peter: Mr. High Standards over here. [laughter] Alright, today's case is Florida v. Riley. This is a 1989 case about whether the police can hover a helicopter over your home in order to look into it and then arrest you based on what they see. According to the Supreme Court, they can, they can do that. According to the Supreme Court, searching a person's home by hovering a helicopter over it, so that you can look into it, is a reasonable thing to do.

0:03:20.7 Rhiannon: Sure.

0:03:21.2 Michael: Sure. And if you expect privacy from that sort of thing, that's unreasonable.

[laughter]

0:03:27.8 Peter: That's right.

0:03:27.9 Rhiannon: You're the unreasonable one.

[laughter]

0:03:29.4 Michael: You're the unreasonable one.

0:03:30.5 Rhiannon: You stupid loser.

0:03:31.7 Michael: That's the legal term.

[laughter]

0:03:34.8 Peter: Some of the cases we cover on this podcast are emblematic of the perils of formalistic reasoning or the encroachment of reactionary thought upon American law. And this is sort of that, but more than that, it's a third type, which is a case where the Court is just being dog shit stupid.

[laughter]

0:03:53.0 Michael: Yes.

0:03:53.8 Rhiannon: Yeah.

0:03:54.0 Michael: Yes.

0:03:54.3 Peter: We're proud to start off 2022 with a case like this.

0:03:57.8 Michael: Yes.

0:04:00.5 Peter: In this case, to be a little more specific, police received a tip that local cool guy, Michael Riley, had a greenhouse on his property.

0:04:08.3 Michael: Let's go over to Mikey's.

[laughter]

0:04:10.8 Rhiannon: Dude's rock icon Michael Riley.

[laughter]

0:04:13.0 Peter: Cops go to his property, but he had a big fence up, so they couldn't see anything. They take the next logical step, right?

0:04:21.3 Michael: Right.

0:04:21.4 Peter: They hop into a helicopter, they hover directly over his property and they spotted some weed plants. They get a warrant based on that, and he gets arrested. And Michael Riley said, "Hey, I don't think you can do that." But the Court said, No, you can. You can.

[laughter]

0:04:38.4 Michael: You get to absolutely do that.

[laughter]

0:04:40.5 Peter: So, Rhi, you want to give us some color?

0:04:42.6 Rhiannon: Sure. You know, there isn't much more nuance than that really, but yeah, here we go. Let's jump right in. So, Michael Riley lived on about five acres of land in rural Pasco County, Florida. His residence was a mobile home on the property, and about 10 or 20 feet behind the home, he had built a greenhouse. So all around the property were tall trees and shrubs, and Michael Riley had constructed a tall wire fence that also went around the perimeter of the property. In front of his home was a Do Not Enter sign, so Michael Riley was nothing if not clear about his desire for people to stay the fuck away from his house. He's got the trees all around, he constructed a tall wire fence, he's got the signs up. He's being clear.

0:05:29.9 Rhiannon: So, let's talk about the greenhouse a little bit more, though. Riley had built up two walls of the greenhouse, so two sides were fully enclosed. The third side wasn't walled-in, but it was enclosed by trees and additional shrubbery, and the fourth side was screened by the mobile home, it faced the mobile home, and there were also additional tall plants. The greenhouse did have a partial roof, some panels were missing, and the remaining panels were a combination of opaque and translucent pieces, so if you were above the greenhouse, like, if you got in a helicopter, it was possible to see inside.

0:06:11.0 Rhiannon: So, that brings us to the dumb asses in law enforcement in Pasco County. According to them, they received an anonymous tip that Michael Riley was growing marijuana in the greenhouse. So they go check out the property first in a normal way, from the ground, with their feet on the ground. They try to see in the greenhouse from the road, and they also try from the adjacent property to kinda peer into the greenhouse, but goddamn it, they can't see any weed, and weed really grinds their gears, okay?

[laughter]

0:06:41.1 Peter: Is it time to leave and solve another crime? Or perhaps...

0:06:45.1 Rhiannon: No, and fuck you for suggesting it.

0:06:47.3 Peter: Is a time to grab the chopper?

[laughter]

0:06:49.9 Rhiannon: That's right. They just can't let it go. So they have to ruin this man's life over some plants, okay? Armed with a helicopter and a camera with a telephoto lens, the police then decide to fly over Riley's property at an elevation of about 400 feet, that is not that high.

0:07:10.3 Michael: No.

0:07:10.7 Rhiannon: And they photograph the premises. They circle over multiple times, and at least one officer eventually says that, "Yeah, yeah, yeah. I can identify marijuana plants in the greenhouse with just my naked eye," based on some of the roof panels being missing in the greenhouse. So with this evidence, they have probable cause, so they get a search warrant, and when they search Riley's mobile home and the greenhouse, they find 44 marijuana plants. Wow, these guys are taking down drug lords, okay? [laughter] So note, just for listeners who might be criminal procedure freaks, I know you're out there, note that there are three steps to the search here, or three times when the protections of the Fourth Amendment get triggered in this story.

0:08:00.1 Rhiannon: First, the police came to the property and they tried to see what they could from the street, they don't need a warrant to do that, they didn't go on to Riley's property, this is not actually a search or a seizure. If there was evidence of criminal activity visible from the street, then police would have had probable cause to get a search warrant and search the property that way, but that didn't happen. So the next step they took, the police surveilled Riley's property from the helicopter, they did that without a warrant, so it's during this step that they supposedly see the marijuana, which gives them the probable cause they need to get a warrant.

0:08:34.3 Rhiannon: They got that warrant and finally conduct a full search of the property. So what Riley challenges in court is that second step, the helicopter step, because what he's saying is that wasn't just your ordinary in plain view surveillance, that was a search of his property, and they did it without a warrant, so that's illegal. And the argument goes that because that search was illegal, everything you got out of the search, police, everything, the evidence of marijuana being grown that you witnessed from the sky, the warrant that you got, and all of the evidence that you collected in the last search, that all has to be thrown out.

0:09:10.7 Rhiannon: So the trial court in this case actually agreed with Riley and the court granted his motion to suppress, they throw that evidence out, but the prosecutors appeal the decision and eventually it gets to the Supreme Court of Florida, which also agreed with Riley saying that the evidence needed to be suppressed. That decision got appealed up to the Supreme Court of the United States, and that's when our esteemed dumb asses come in and we get this case.

0:09:39.0 Peter: Yeah. So let's talk about the opinion. So the question is whether hovering over this guy's house in a helicopter looking into his greenhouse violates the Fourth Amendment. The Fourth Amendment prohibits unreasonable searches and seizures. In 1968, there was a case called Katz v. United States, where the Court clarified exactly what that meant. They said that the question is whether a person has a reasonable expectation of privacy. In that case, the cops bugged a phone booth that the defendant was using to do some allegedly shady gambling business, but the Court said, No, you need a warrant to do that because people have a reasonable expectation that their phone conversations will be private even in a public booth. So the question here is, does Michael Riley have a reasonable expectation that the cops will not fly a helicopter over his property to search for marijuana?

0:10:34.5 Michael: Or anybody else, for that matter, right?

0:10:36.7 Rhiannon: Right, yeah.

0:10:38.4 Peter: And the Court in a plurality opinion written by Justice Byron White held that, no, he doesn't have an expectation of privacy, and therefore the cops did not need a warrant and did nothing wrong. The plurality focuses very heavily on the fact that technically per Federal Aviation Administration regulations, the helicopter was allowed to be hovering 400 feet above his property.

0:11:01.8 Rhiannon: Oh, good. We're good, then, if the FAA said that was alright.

0:11:06.4 Peter: Right. They basically said, well, the helicopter could legally be there under the Aviation regulations, so it's fine. Now, this reasoning is pretty piss poor, because the Fourth Amendment analysis, like I mentioned, is supposed to be whether Riley has a reasonable expectation of privacy, so the question isn't are the cops legally allowed to be there, it's would Riley reasonably expect the cops to fly their helicopter over his house.

0:11:34.1 Peter: The plurality's reasoning is so bad that even Sandra Day O'Connor doesn't sign on to it. She writes separately in concurrence to say that she agrees with the conclusion, but not the rationale. She makes this quasi-procedural point that Riley should have shown that flights over his house are uncommon, which he did not do. The dissents by Brennan and Blackmun disagree with her and argue that it makes more sense that the burden should rest with the cops to show that the flights over his house are common.

0:12:02.6 Peter: Part of what bothers me here is something that I think even the dissents get wrong. One of the questions the Court addresses is how often aircraft are flying over Riley's house. Because if it happens all the time, then he shouldn't expect privacy, but I'm not sure why that should matter: Even if people are frequently flying low over his home, that doesn't mean it's not an invasion of his privacy, those two things are independent. I think what's happening is judges are making the mistake of thinking about the Fourth Amendment standard as where do you expect privacy, when the actual question is where should you expect privacy.

0:12:38.3 Michael: Yes.

0:12:38.4 Rhiannon: Yes.

0:12:38.4 Peter: And when you think about it through that lens, the outcome becomes very obvious. Shouldn't matter what the FAA regulations are, shouldn't matter how many people are flying above Riley's house, the bottom line question here is whether Riley should expect that the contents of his greenhouse, which are visible only to a strategically positioned helicopter, are entitled to some privacy. We shouldn't need our nation's top legal minds to weigh in on this shit. If the cops have to go to extraordinary lengths to see into his property, it should be a fairly cut and dry constitutional violation.

0:13:12.2 Rhiannon: Open and shut.

0:13:13.4 Peter: The attempts by the Court to apply all of these pseudo-technical tests, I think it really makes them lose the forest for the trees here.

0:13:20.2 Michael: Right, I mean... It's a simple point, but when you frame it that way, if the cops have to get in a helicopter and circle your property multiple times to see what they're trying to see, then of course you have a reasonable expectation that that's private.

0:13:36.3 Rhiannon: Absolutely.

0:13:37.2 Michael: You've shielded whatever is there from just about any outside observer, like of course, it couldn't be more obvious.

0:13:44.6 Rhiannon: Yeah, and the reasonableness of expecting privacy, even if it may be a frequent occurrence that there are aircraft, helicopters or planes, flying over your house, it doesn't work for any other Fourth Amendment standard. If the cops search your house without a warrant, the question about whether or not that's legal doesn't rest on, well, do you let people into your house a lot? That's not how that works. It's whether the state, the power of the government and all of the resources behind it, if they have violated your reasonable expectation of your home being a private space from exactly this, from state intrusion, not just the public that happened to walk by, fly by or come into your private spaces sometimes.

0:14:33.8 Michael: It seems like the logical extension of the reasoning would be something like... If a woman lived across the street from some 13-year-old horny creep who's constantly peeping in her windows, she has fewer Fourth Amendment protections than the woman next door who doesn't have a creep constantly peering into her window.

0:14:55.1 Rhiannon: Yeah, it doesn't make any sense.

0:14:56.5 Peter: Yeah. I mean, the standard that they are coalescing around implicitly is that if the cops can sort of finagle some way to look into your shit, then they're gonna be fine. I realize that they're not saying that explicitly, but I think that's where they're kind of ultimately going here. There's also something going on in this case that's sort of the elephant in the room in my opinion. The cops claimed that they spotted the weed plants from 400 feet up in a helicopter. Are you honestly telling me that a cop can accurately identify a marijuana plant from 400 feet away? A football field, for reference, is 300 feet long. So imagine yourself looking across more than a football field at a plant. Do not tell me that you could identify marijuana from 400 feet in the sky, you're not a fucking peregrine falcon.

[laughter]

0:15:51.8 Michael: 'Cause I'm a huge nerd. I was like, when you were describing the background, Rhi, I just kept thinking of that scene in Lord of the Rings where they're like, "Legolas, what do your elven eyes see?"

0:16:04.8 Rhiannon: Miles away.

0:16:05.4 Michael: They're growing 40 marijuana plants.

[laughter]

0:16:08.5 Peter: Right, okay. Here are a couple of more realistic scenarios in my view. First, the cops illegally searched the greenhouse one way or another, and then they did the helicopter thing as a cover story to get a warrant. Second, they tried the helicopter thing, didn't see shit, but told the judge that they did in order to secure a warrant. There might be other options, there probably is a third option, which is that when they used some sort of telescopic lens, they could see it, but they couldn't actually see it with their naked eye, which you need to in order for this Fourth Amendment standard to apply. But it just seems very clear to me that they were not 400 feet in the air like, Yeah, that's weed there. Get the fuck out here. Come on. World's greatest botanists? Come on.

0:16:52.1 Michael: One thing that also sticks out about this case for me is we've talked in the past about how the Fourth Amendment is an area where Antonin Scalia is actually better than a lot of conservative Justices and sometimes better than the liberal Justices, frequently to the left of Breyer, for example. But in this case, he joins this dog shit plurality, even though in later years he will be writing much better opinions that are more privacy protected than this one, but I think it really gets to like a little quirk of his, that we've never really talked about, which is that that dude just really does not like marijuana, he fucking hates pot so much, and he's willing to abandon all his principles to make sure that the government can fucking grab your weed.

0:17:43.4 Rhiannon: Zero tolerance policy for the devil's lettuce.

0:17:46.5 Michael: Yeah, I mean, he does it later on in cases that are against conservative orthodoxy, on the Commerce Clause and the power of Congress.

0:17:55.1 Peter: It's interesting, especially because Kyllo, I think, was the case that maybe 10 years after this is about infrared searches, whether cops can just hold up thermal technology to someone's home so that they can see inside. And the Court said, no, no, you can't do that. And the reason that Scalia gave when he wrote that opinion was, this is not like technology that anyone has access to, which would obviously also apply to helicopters.

0:18:22.0 Michael: Well, I think the majority opinion actually in this... Or the plurality opinion, rather, in this case, does the rich and poor, are they forbidden from sleeping under the bridge? And they're like, cops and citizens alike are free to get in a helicopter and hover 400 feet over their house, 'cause, yeah, I'm just gonna grab my helicopter and go check out Riley's place and see what he's up to.

0:18:45.7 Peter: What do you guys think was the percentage chance that they were playing the Apocalypse Now song, the Flight of the Valkyries or whatever it is.

0:18:52.3 Rhiannon: The cops in the helicopter?

0:18:54.1 Peter: Super high, right?

0:18:55.8 Rhiannon: Oh, yeah.

0:18:56.0 Michael: Absolutely.

0:18:58.4 Rhiannon: Oh, yeah. Which actually brings me to a point that I was thinking about when reading this case again. I read this case in law school and it was fun to read it again, actually, but it makes me think about the militarization of the police, and just arming the police with all kinds of equipment that they do not need, and then expecting police to be responsible in using their discretion for how they use that equipment. So who knows how many helicopters the Pasco County Law Enforcement department had, but when you are equipping police with all kinds of, what am I trying to say?

0:19:37.4 Michael: Inspector Gadget shit.

0:19:39.4 Peter: Michael, I was gonna make an Inspector Gadget comment later. This whole case has big Inspector Gadget vibes.

0:19:46.4 Michael: It really does.

0:19:48.9 Rhiannon: What's it called when you have... Arsenal. Yeah, so when you are equipping police with this arsenal of high-tech equipment, weapons, all kinds of things to surveil the population, to stop them, to fine them, to search them, they are going to use it to the furthest extent possible. They are never going to rein that in, and it's on the courts in this country, especially the federal judiciary, especially the Supreme Court, when these cases get to them, to be thinking about that, to be thinking about what kind of further militarization and further military activity that they're green lighting in domestic law enforcement.

0:20:33.4 Michael: Right, right. Like one of the dissents even literally quotes from George Orwell in 1984, and the scene is a helicopter flitting in and peering in someone's windows and then...

0:20:45.4 Rhiannon: Yeah, staring into the windows of homes. Yes.

0:20:47.7 Michael: Yeah, exactly. So it's not like the dangers here were a mystery, right?

0:20:52.9 Rhiannon: Right.

0:20:53.8 Peter: No, we were talking about this. It's not just 1984. There's a whole genre of big brother, you got Brave New World and all those books. All of fiction literature from 1950 to 1990 was about shit like this.

0:21:07.3 Michael: About the dangers that surveillance technology posed to liberty.

0:21:11.3 Peter: Right.

0:21:11.6 Rhiannon: Yeah. Yeah. And we're kind of laughing. I wonder if this is hitting as obvious for people who are just listening. We are laughing at the absurdity of the police jumping in their chopper and searching somebody's property from 400 feet in the air. Maybe that seems common now to people. Maybe it seems like that's actually not a crazy thing for the police to do, because police do use helicopters all the time now. Police do use crazy equipment and technology for searching people's homes, but that's because of this case. That's because the Supreme Court gave it the thumbs up here, and now, it's super common that police use war tactics, basically, that police use every angle that they can, including by getting in helicopters and looking inside people's homes to search.

0:22:03.8 Michael: Yeah.

0:22:04.4 Peter: And by the way, studies show that the use of military grade equipment has either a nominal or no impact on crime rates, not to mention there are studies showing that SWAT is deployed more frequently, for example, in black neighborhoods, even when you control for crime rates. There is an enormous amount of research showing that the militarization of police is, A, not productive in any crime prevention sense and, B, super racist and results in all sorts of untold death and destruction.

0:22:37.4 Rhiannon: Yeah, that's exactly right. We know that Breonna Taylor was killed in her bed because police were serving a no-knock warrant, armed to the teeth with all of this military grade killing equipment. I was looking at an ACLU report from 2014 about police militarization, and they talked specifically about the Maricopa County Police Department in Arizona, which had stockpiled, for example, a combined total of 120 assault rifles, five armored vehicles, and 10 helicopters. Why does the police department in Maricopa County need 10 helicopters, right?

0:23:20.4 Peter: Well, it's one helicopter for every 40 marijuana plants.

0:23:24.4 Rhiannon: Right. Yeah, and I'm glad that you brought that up, Peter, because in this same ACLU report, they found that nearly 80% of the SWAT raids that were studied were conducted to serve search warrants, usually, in the majority of cases, in drug cases. This militarization of police, which puts citizens in more danger when interacting with law enforcement, is all for what? Finding marijuana in a completely failed war on drugs.

0:23:54.4 Rhiannon: There is lots of research, not just about the militarization of police in terms of the equipment that they're getting and how this affects the communities that they're supposed to serve. There's also really good research that shows that equipping them with these kinds of weapons, as well as giving police departments military training, creates in police a sort of warrior mentality, where they view the people that they're supposed to serve as enemies, and it just all comes back, I think, to cases like this at the Supreme Court. People aren't thinking about how the federal judiciary, and a conservative Supreme Court specifically, green-lighted these practices back in the '70s, back in the '80s, and now look where we are.

0:24:38.3 Peter: Right, and by the way, if you're wondering exactly how police departments are getting this equipment, the answer is, generally speaking, the federal government. The Department of Defense has programs that allow for law enforcement to purchase excess military supplies and equipment. I think those programs largely have their origins in the era after World War II when the country was trying to handle an enormous amount of military equipment it no longer needed, but as the war on drugs really hit its stride in the '90s, shortly after this case, the government began to operate with the express purpose of militarizing local police forces, and the Department of Defense steadily established like a weapons pipeline between the federal military and state and local law enforcement.

0:25:20.6 Rhiannon: Yeah.

0:25:21.4 Michael: Yeah. Yeah, and I think while we're on this topic, we should start thinking about what the future of police surveillance looks like, right? And it very well could include, or it probably will include, drone surveillance, and that poses a bit of an issue, because there are a few lines of cases on this sort of technology and privacy issue at the Supreme Court, in the Supreme Court jurisprudence, and they go different ways.

0:25:52.9 Michael: Like Peter mentioned, there's this case called Kyllo v. United States, which was written by Scalia, which said, yeah, you can't use infrared sensors to image inside someone's home. You can't use this very exotic technology to intrude on places you otherwise couldn't go without getting a warrant. I don't know why helicopters aren't also sort of exotic technologies for the lay person.

0:26:19.3 Rhiannon: He hates weed, Michael.

0:26:21.4 Michael: Right. [laughter] There's another line of cases as well that had to do with GPS monitoring on automobiles. And there was a pretty common practice of affixing GPS devices to people's cars without getting a warrant, and generally speaking, the idea was, well, look, where you drive in public is... Cops can follow you around, if they can see that, that's a lot less private than what's in your grow house behind your fence.

0:26:50.5 Rhiannon: Right.

0:26:50.5 Michael: And so obviously, if we can collect that just by following you around, we can collect that information by just sticking a little GPS device on your car. But the Supreme Court turned that back. In an interesting unanimous but divided decision, they had different rationales, but the majority opinion, again written by Scalia, said you can't intrude on someone's physical property like that, you can't affix a device to their property. And so with drones, what you have is something that's actually pretty common in use now, right? Anybody can go to Best Buy or wherever and buy a drone, I think at some of the larger airports you can buy a drone out of a fucking vending machine, or whatever, electronics vending machines, you know?

0:27:34.4 Michael: They're everywhere, they don't require an intrusion onto someone's property. They would seem to most comfortably fit into this case, this line of cases, Florida v. Riley, which would seem to green light this gross intrusion into privacy and like the creation of a mass surveillance apparatus, even more so than what exists now. And so the legal mechanisms for reining that in, I don't think currently exist, or at least would require some fudging of the precedents or more seriously rethinking of the precedents. Because you wanted to get the weed dealers in 1989, and now we're stuck with this bullshit.

0:28:21.2 Michael: Luckily, it has gotten bad enough that even the conservatives these days are concerned about the scope of police surveillance powers. They are constantly clawing back all the very predictable outcomes of their previous precedents with historical cell phone tower data, with infrared devices, and GPS tracking devices. This is all stuff that it made sense at the time, under the state of the law that cops that they could just do this, right? And it's the Supreme Court having to clean up their mess.

0:28:52.7 Rhiannon: Yeah.

0:28:55.2 Peter: Yeah. And part of the issue here is that the jurisprudence on the Fourth Amendment is just all over the place.

0:29:00.4 Michael: Absolutely.

0:29:01.2 Peter: There are all these different standards that don't align with one another. Doctrines about what's in plain view and what's not in plain view. You have weird cases like this where all of a sudden FAA regulations are at play. You have the infra-red line of cases where the analysis is about the technology being used. You have the GPS cases, which are sort of like their own thing, and it's not really about the technology. They claim that it's about affixing a GPS monitor to someone's property. Is that really what it's about? Are they saying that the cops can't touch your car?

0:29:40.3 Peter: I don't think that's what they believe the law is. The cops can stop your car and make you wait for an hour while a canine unit comes and they can't pop a little GPS unit on it? None of these things align with one another. They're all just sort of vibes-based jurisprudence, that's not admitting that it's vibes-based jurisprudence.

0:29:56.2 Michael: Yeah.

0:29:56.9 Peter: Right?

0:29:57.3 Rhiannon: Exactly, exactly.

0:29:58.8 Michael: There's some precedent... It's something like a cop literally rolled down someone's window or the car, like forced the window down on a parked car and removed some papers that were on the dashboard to reveal the VIN number, so they could check the VIN number to ID the car. And it was like, yeah, well, that is basically publicly available information. The fact that it was actually obscured doesn't change that it's... Vibes-based, it wasn't obscured, right? Like theoretically, it's publicly available information so, yeah, that's not a search.

0:30:29.4 Peter: It's so bizarre, and it makes me sort of miss the jurisprudential style of the Warren Court, where they're proactive about people's rights and create these forward-thinking, generally-applicable rules, knowing that many circumstances are going to arise that you'll need those rules for. The Fourth Amendment jurisprudence from 1975 onward is sort of like the output of an ostensible restraint, right? An ostensible judicial restraint, where they're trying to just band-aid every little injury rather than thinking about how to prevent injuries moving forward.

0:31:12.2 Rhiannon: Yeah.

0:31:12.7 Peter: It becomes a sort of tunnel vision, and at no point has the Court taking a step back, like it should have at some point during the '90s and early 2000s, for example, and the closest thing is that Kylo case about infra-red. And basically said, we need to completely reconceptualize how we think of searches in this era, in an era when the technology available to not just cops but everyone is way beyond what it was 50 years ago, and the infringements into privacy potentially are enormous. But the sort of proactive approach to judging at the Supreme Court has just fallen by the wayside, at least when it comes to vindicating people's rights.

0:31:53.7 Rhiannon: Yeah.

0:31:54.3 Michael: Another way that the Fourth Amendment, I think, is not up to the task, or at least as judges currently think about it, because it's very case-specific, it's very individual-driven.

0:32:05.4 Rhiannon: Yes.

0:32:05.9 Michael: It's about your expectation of privacy. Is your house exposed to the public, right? Do you have your window open? Whatever, blah, blah, blah. But one of the sort of lurking dangers with things like historical cell tower data or with drone surveillance is a larger mass surveillance, which has sort of different sort of concerns and implications, right? Like mass surveillance isn't necessarily just about my individual expectation or your individual expectations, it's about the structure of our society. It has implications for the First Amendment, and like whether or not your speech is chilled, right? Nobody thinks seriously about this in the judiciary.

0:32:48.9 Rhiannon: I think that's exactly right. I was also, as we've been talking, I've been thinking about practicing, and litigating in this space, in the Fourth Amendment space, is so difficult now, because it is so individualized and is so fact-specific, circumstance-specific, that it's really hard. A lot of times when you're a lawyer, I think, especially as a public defender, clients or whoever will ask you, "The cops followed me in this way, or the cops came into my house in this way, isn't that illegal?" And you have to say, well, no, actually, because it depends on X, Y, Z, and it's so individualized and case-specific that there is no uniting through line through the jurisprudence to guide lawyers, and more importantly, to guide law enforcement, to limit law enforcement in these kind of thematic broad ways.

0:33:42.3 Rhiannon: There is no sort of working mechanism that is a message to law enforcement about what they can and can't do. Because it is so case-specific, they just do whatever they want, right, and then afterwards, they're going to the court for the green light on it, retroactively, it makes it very hard to advise clients, it makes it very hard to predict how your Fourth Amendment litigation is going to come out, even though case law is supposed to give you guidance on this. It's an area of the law that's really a mess.

0:34:10.3 Peter: Yeah. We've been talking about the individualized analysis, and I think there's a degree to which that's sort of inherently reactionary, where the Court's analysis is based on a person-specific circumstance, not the rights that adhere to all of us. So, if you are a wealthy person in a mansion up on a hill with a big gate around it, the Court will say, well, of course, you have a right to privacy in your living room. If you're a person who can't really afford nice blinds on the ground floor of a shitty apartment building that people can see into from the street, your expectation of privacy under the Fourth Amendment is diminished, and it just cannot be that normatively speaking, your constitutional rights should depend on your ability to afford seclusion. It just doesn't make any sense.

0:34:58.4 Rhiannon: Yeah, exactly.

0:35:00.7 Peter: It can't be emphasized enough how much of this jurisprudence is poor people getting caught with drugs, just so much of it, so much of it. Even in a case like this, where they're fucking Inspector Gadget-ing their asses 400 feet above his house. It's to bust a dude who lives in a mobile home and has some weed plants.

0:35:19.9 Michael: Yeah, in rural Florida... Rural central Florida. This is not a fucking kingpin.

0:35:25.7 Rhiannon: No.

0:35:26.2 Peter: As soon as there is a fucking case about hovering helicopters over the homeowners association in fucking Westchester somewhere, there will be a candlelight vigil outside of the Supreme Court. Nancy Pelosi's gonna speak on it. [chuckle] Oh, God. You know, a lot of conservative and frankly moderate Fourth Amendment jurisprudence over the last several decades has been just like finding excuses to side with cops who manage to find evidence through very suspect methods. The Fourth Amendment prohibits unreasonable searches and seizures. Generally speaking, that is supposed to mean that if cops are searching private property, they'll need a warrant, there are supposed to be very few exceptions.

0:36:09.5 Peter: Conservatives have responded to that by considerably narrowing the boundaries of what's deemed a search under the Constitution. In 1978, there was a case where the Court held that the cops could search through your trash because you had abandoned your claim to privacy by putting something in the trash, which like how could that possibly be true?

0:36:30.8 Michael: If you really wanted to keep it private, you needed to start burning your trash in your back yard.

0:36:35.7 Rhiannon: Or you keep it forever, you wouldn't throw it away.

0:36:37.5 Peter: It's the only way we're allowed to dispose of our shit. [chuckle] The bottom line question there should be, do you think the average person would like someone rummaging through their trash? The answer is pretty obvious. Is there a single person who would not feel a little violated by their neighbor or whoever else going through their trash? How can it be said that you abandoned your interest in privacy? In 1983, there was a case where cops had walked around a No Trespassing sign on a man's property, walked a mile deep into that property and then found marijuana in a field. The Court said that the cops did not need a warrant because of the open fields doctrine, which says that open fields are generally not protected under the Fourth Amendment, and that's a doctrine that dates back to the 1920s in American jurisprudence. That's despite the fact that the cops had to walk a mile past a No Trespassing sign to find the open fields.

0:37:33.0 Rhiannon: On to somebody's property. Right, exactly.

0:37:35.3 Peter: There's not a lot of continuity or common sense in this jurisprudence, it's just a mess of inconsistent methodology and made-up rules, and I actually think my big takeaway from these cases is about the value of common sense. Like formalistic analysis has people searching for these objective rules that can be applied across different situations, and formalists claim that the benefit is that the personal preferences of judges don't play a role, but the trade-off is that you lose the guardrail of common sense. The Fourth Amendment has the word "reasonable" in it, and I think when you analyze what's reasonable or not, it's okay to just step back and do a gut check sometimes.

0:38:17.0 Peter: There's a concept in tort law called the res ipsa loquitur. It refers to situations where you don't know exactly what went wrong, but you know based on the outcome that something did go wrong. This to me is one of those situations. If your analysis leads you to a place where cops hovering a fucking helicopter over someone's property to spy on their shit is not a violation of their privacy, you have to question the usefulness of the analysis. I'm not sure if you went wrong looking at the FAA regulations or somewhere else, but you fucked up, you fucked up somewhere.

0:38:51.1 Michael: The rules that brought you here are broken.

0:38:52.8 Rhiannon: Right, exactly.

0:38:54.1 Rachel: Yeah. Rachel, can we get the No Country for Old Men line?

0:38:54.6 S?: Let me ask you something. If the rule you followed brought you to this, of what use was the rule?

[laughter]

0:39:09.2 Peter: Yeah, this is something that many very intelligent judges have pointed out. This is not something that some podcasters who don't have the responsibilities of judges are pointing out, where it's just like oh, use your common sense. This is something that Richard Posner famously pointed out. Basically like, you don't have to let the law make an ass of you. Just because the rules lead you to some given outcome doesn't mean you have to adhere to it. If the outcome is absurd, you can look at that and say, this is absurd. This case is fucking absurd. Cops should not be allowed to fucking hover a helicopter over your house and look at weed.

0:39:44.2 Michael: Yeah. You know they're called justices, but everybody else in this profession, they're called judges, and the idea is they're supposed to have good judgment, right? That's the whole idea is ultimately you should be able to say like, this is fucking stupid, guys. [laughter]

0:39:58.2 Rhiannon: Exactly.

0:40:00.2 Michael: This is why we're here.

0:40:00.2 Rhiannon: That's your job, exactly, to say when something is ridiculous, to call out something when it's absurd, so that we have better rules going forward.

0:40:09.2 Peter: Yeah. And it's an area of the law where you need to consult with your vibes, and this is where formalism runs into trouble, because they deny the power of the vibe. They use the power of the vibe.

0:40:20.4 Michael: But then they fall victim to their vibes.

0:40:22.2 Rhiannon: That's right.

0:40:22.3 Michael: As a result.

0:40:23.2 Peter: That's right. They don't control their vibes. They think that they've done away with their vibes, but in reality, their vibes are running amok within them.

0:40:31.2 Rhiannon: Yeah.

0:40:31.3 Michael: That's right. That's right.

0:40:32.3 Peter: This is really gold. Let's turn this into its own episode about controlling your vibes versus letting your vibes control you.

[laughter]

0:40:39.1 Rhiannon: Special Patreon episode.

0:40:40.7 Peter: That's what legal realism is. Legal realism is about accepting and controlling your vibes.

0:40:45.2 Michael: That's right.

0:40:45.8 Peter: Formalism is about denying your vibes, but ultimately you get controlled by your vibes regardless.

0:40:50.2 Michael: I think that actually is a pretty good [laughter] encapsulation of this case, though.

0:40:54.1 Rhiannon: I don't hate it. I don't hate it.

0:40:56.0 Peter: I started smoking weed again, and this is what happens.

[laughter]

[music]

0:41:05.3 Peter: Next week is NFIB v. Department of Labor, a case that just dropped. This is a case about whether OSHA, the Occupational Safety and Health Administration, can require employers to implement vaccine and testing mandates, and the Supreme Court held quite recently that no, OSHA can't do that.

0:41:28.1 Rhiannon: Cool.

0:41:28.3 Peter: And you actually have to let the Omicron variant rip through our population. [laughter] So we'll be talking about that. Yeah, no, it's great.

0:41:36.9 Michael: Yeah.

0:41:38.2 Peter: Follow us on Twitter @fivefourpod. Subscribe to our Patreon, patreon.com/fivefourpod, all spelled out. Access to premium episodes, special events, our private Slack, all sorts of shit. We'll see you next week.

0:41:55.3 Michael: Bye-bye.

0:41:55.5 Rhiannon: Bye.

0:41:57.2 Michael: 5-4 is presented by Prologue Projects. This episode was produced by Rachel Ward with editorial support from Leon Neyfakh and Andrew Parsons. Our production manager is Percia Verlin. Our artwork is by Teddy Blanks at Chips NY, and our theme song is by Spatial Relations.