Syllabus | Opinion [ Rehnquist ] | Concurrence [ Scalia ] | Concurrence [ Kennedy ] | Concurrence [ Breyer ] | Dissent [ Ginsburg ] |
---|---|---|---|---|---|
HTML version PDF version | HTML version PDF version | HTML version PDF version | HTML version PDF version | HTML version PDF version | HTML version PDF version |
MINNESOTA, PETITIONER v. WAYNE
THOMAS CARTER
MINNESOTA V. MELVIN JOHNS
Justice Scalia, with whom Justice Thomas joins, concurring.
I join the opinion of the Court because I believe it accurately applies our recent case law, including Minnesota v. Olson, 495 U.S. 91 (1990). I write separately to express my view that that case lawlike the submissions of the parties in this casegives short shrift to the text of the Fourth Amendment, and to the well and long understood meaning of that text. Specifically, it leaps to apply the fuzzy standard of legitimate expectation of privacya consideration that is often relevant to whether a search or seizure covered by the Fourth Amendment is unreasonableto the threshold question whether a search or seizure covered by the Fourth Amendment has occurred. If that latter question is addressed first and analyzed under the text of the Constitution as traditionally understood, the present case is not remotely difficult.
The Fourth Amendment protects [t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures . U.S. Const., Amdt. 4 (emphasis added). It must be acknowledged that the phrase their . . . houses in this provision is, in isolation, ambiguous. It could mean their respective houses, so that the protection extends to each person only in his own house. But it could also mean their respective and each others houses, so that each person would be protected even when visiting the house of someone else. As todays opinion for the Court suggests, however, ante, at 45, it is not linguistically possible to give the provision the latter, expansive interpretation with respect to houses without giving it the same interpretation with respect to the nouns that are parallel to housespersons, papers, and effectswhich would give me a constitutional right not to have your person unreasonably searched. This is so absurd that it has to my knowledge never been contemplated. The obvious meaning of the provision is that each person has the right to be secure against unreasonable searches and seizures in his own person, house, papers, and effects.
The Founding-era materials that I have examined confirm that this was the understood meaning. (Strangely, these materials went unmentioned by the State and its amiciunmentioned even in the States reply brief, even though respondents had thrown down the gauntlet: In briefs totaling over 100 pages, the State of Minnesota, the amici 26 attorneys general, and the Solicitor General of the United States of America have not mentioned one word about the history and purposes of the Fourth Amendment or the intent of the framers of that amendment. Brief for Respondents 12, n. 4.) Like most of the provisions of the Bill of Rights, the Fourth Amendment was derived from provisions already existing in state constitutions. Of the four of those provisions that contained language similar to that of the Fourth Amendment,1 two used the same ambiguous their terminology. See Pa. Const., Art. X (1776) (That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure ); Vt. Const., ch. I, §XI (1777) (That the people have a right to hold themselves, their houses, papers, and possessions free from search or seizure ). The other two, however, avoided the ambiguity by using the singular instead of the plural. See Mass. Const., pt. I, Art. XIV (1780) (Every subject has a right to be secure from all unreasonable searches, and seizures of his person, his houses, his papers, and all his possessions); N. H. Const. §XIX (1784) (Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions). The New York Convention that ratified the Constitution proposed an amendment that would have given every freeman a right to be secure from all unreasonable searches and seizures of his person his papers or his property, 4 B. Schwartz, The Roots of the Bill of Rights 913 (1980) (reproducing New York proposed amendments, 1778) (emphases added), and the Declaration of Rights that the North Carolina Convention demanded prior to its ratification contained a similar provision protecting a freemans right against unreasonable searches and seizures of his person, his papers and property, id., at 968 (reproducing North Carolina proposed Declaration of Rights, 1778) (emphases added). There is no indication anyone believed that the Massachusetts, New Hampshire, New York, and North Carolina texts, by using the word his rather than their, narrowed the protections contained in the Pennsylvania and Vermont Constitutions.
That their houses was understood to mean their respective houses would have been clear to anyone who knew the English and early American law of arrest and trespass that underlay the Fourth Amendment. The peoples protection against unreasonable search and seizure in their houses was drawn from the English common-law maxim, A mans home is his castle. As far back as Semaynes Case of 1604, the leading English case for that proposition (and a case cited by Coke in his discussion of the proposition that Magna Carta outlawed general warrants based on mere surmise, 4 E. Coke, Institutes 176177 (1797)), the Kings Bench proclaimed that the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house. Semayne v. Gresham, 5 Co. Rep. 91a, 93a, 77 Eng. Rep. 194, 198 (K.B. 1604). Thus Cooley, in discussing Blackstones statement that a bailiff could not break into a house to conduct an arrest because every mans house is looked upon by the law to be his castle, 3 W. Blackstone, Commentaries on the Laws of England 288 (1768), added the explanation: [I]t is the defendants own dwelling which by law is said to be his castle; for if he be in the house of another, the bailiff or sheriff may break and enter it to effect his purpose . 3 W. Blackstone, Commentaries on the Laws of England 287, n. 5 (T. Cooley 2d rev. ed. 1872). See also Johnson v. Leigh, 6 Taunt. 246, 248, 128 Eng. Rep. 1029, 1030 (C. P. 1815) ([I]n many cases the door of a third person may be broken where that of the Defendant himself cannot; for though every mans house is his own castle, it is not the castle of another man).2
Of course this is not to say that the Fourth Amendment protects only the Lord of the Manor who holds his estate in fee simple. People call a house their home when legal title is in the bank, when they rent it, and even when they merely occupy it rent-freeso long as they actually live there. That this is the criterion of the peoples protection against government intrusion into their houses is established by the leading American case of Oystead v. Shed, 13 Mass. 520 (1816), which held it a trespass for the sheriff to break into a dwelling to capture a boarder who lived there. The court reasoned that the inviolability of dwelling-houses described by Foster, Hale, and Coke extends to the occupier or any of his family who have their domicile or ordinary residence there, including a boarder or a servant who have made the house their home. Id., at 523 (emphasis added). But, it added, the house shall not be made a sanctuary for one such as a stranger, or perhaps a visitor, who upon a pursuit, take[s] refuge in the house of another, for the house is not his castle; and the officer may break open the doors or windows in order to execute his process. Ibid. (emphasis in original).
Thus, in deciding the question presented today we write upon a slate that is far from clean. The text of the Fourth Amendment, the common-law background against which it was adopted, and the understandings consistently displayed after its adoption make the answer clear. We were right to hold in Chapman v. United States, 365 U.S. 610 (1961), that the Fourth Amendment protects an apartment tenant against an unreasonable search of his dwelling, even though he is only a leaseholder. And we were right to hold in Bumper v. North Carolina, 391 U.S. 543 (1968), that an unreasonable search of a grandmothers house violated her resident grandsons Fourth Amendment rights because the area searched was his home, id., at 548, n. 11 (emphasis added). We went to the absolute limit of what text and tradition permit in Minnesota v. Olson, 495 U.S. 91 (1990), when we protected a mere overnight guest against an unreasonable search of his hosts apartment. But whereas it is plausible to regard a persons overnight lodging as at least his temporary residence, it is entirely impossible to give that characterization to an apartment that he uses to package cocaine. Respondents here were not searched in their hous[e] under any interpretation of the phrase that bears the remotest relationship to the well understood meaning of the Fourth Amendment.
The dissent believes that [o]ur obligation to produce coherent results requires that we ignore this clear text and four-century-old tradition, and apply instead the notoriously unhelpful test adopted in a benchmar[k] decision that is 31 years old. Post, at 5, citing Katz v. United States, 389 U.S. 347 (1967). In my view, the only thing the past three decades have established about the Katz test (which has come to mean the test enunciated by Justice Harlan's separate concurrence in Katz, see id., at 360) is that, unsurprisingly, those actual (subjective) expectation[s] of privacy that society is prepared to recognize as reasonable,
The dissent may be correct that a person invited into someone elses house to engage in a common business (even common monkey-business, so to speak) ought to be protected against government searches of the room in which that business is conducted; and that persons invited in to deliver milk or pizza (whom the dissent dismisses as classroom hypotheticals, post, at 2, as opposed, presumably, to flesh-and-blood hypotheticals) ought not to be protected against government searches of the rooms that they occupy. I am not sure of the answer to those policy questions. But I am sure that the answer is not remotely contained in the Constitution, which means that it is leftas many, indeed most, important questions are leftto the judgment of state and federal legislators. We go beyond our proper role as judges in a democratic society when we restrict the peoples power to govern themselves over the full range of policy choices that the Constitution has left available to them.
Notes
1. Four others contained provisions proscribing general warrants, but unspecific as to the objects of the protection. See Va. Const. §10 (1776); Del. Const., Art. I, §6 (1776); Md. Const., Art. XXIII (1776); N. C. Const., Art. XI (1776).
2. Justice Kennedy seeks to cast doubt upon this historical evidence by the carefully generalized assertion that scholars dispute [the] proper interpretation of the English authorities. Post, at 2. In support of this, he cites only a passage from Payton v. New York, 445 U.S. 573 (1980), which noted a deep divergence among scholars as to whether Semaynes Case accurately described one aspect of the common law of arrest. Id., at 592. Unfortunately for purposes of its relevance here, that aspect had nothing whatever to do with whether one mans house was another mans castle, but pertained to whether a constable had the authority to make [a] warrantless arrest in the home on mere suspicion of a felony. Ibid. The deep divergence is a red herring. Justice Kennedy also attempts to distinguish Semaynes Case on the ground that it arose in the context of civil process, and so may be of limited application to enforcement of the criminal law. Post, at 2. But of course the distinction cuts in precisely the opposite direction from the one that would support Justice Kennedys case: if one mans house is not another mans castle for purposes of serving civil process, it is a fortiori not so for purposes of resisting the governments agents in pursuit of crime. Semaynes Case itself makes clear that the Kings rights are greater: And all the said books, which prove, that when the process concerns the King, that the sheriff may break the house, imply that at the suit of the party, the house may not be broken: otherwise the addition (at the suit of the King) would be frivolous. 5 Co. Rep. 92b, 77 Eng. rep., at 198. See also id., at 92a, 77 Eng. Rep., at 197 (In every felony the King has interest, and where the King has interest the writ is non omittas propter aliquam libertatem; and so the liberty or privilege of a house doth not hold against the King); id., at 91b, 77 Eng. Rep., at 196 (J. beats R. so as he is in danger of death, J. flies, and thereupon hue and cry is made, J. retreats into the house of T. they who pursue him, if the house be kept and defended with force may lawfully break the house of T. for it is at the [Kings] suit). Finally, Justice Kennedy suggests that, whatever the Fourth Amendment meant at the time it was adopted, it does not matter, since the axiom that a mans home is his castle . . . has acquired over time a power and an independent significance justifying a more general assurance of personal security in ones home, an assurance which has become part of our constitutional tradition. Post, at 2. The issue in this case, however, is not personal security in ones home, but personal security in someone elses home, as to which Justice Kennedy fails to identify any constitutional tradition other than the one I have describedleaving us with nothing but his personal assurance that some degree of protection higher than that (and higher than what the people have chosen to provide by law) is justif[ied].
3. The dissent asserts that I undervalu[e] the Katz Courts observation that the Fourth Amendment protects people, not places. Post, at 7, n. 3, citing 389 U.S., at 351. That catchy slogan would be a devastating response to someone who maintained that a location could claim protection of the Fourth Amendmentsomeone who asserted, perhaps, that primeval forests have rights, too. Cf. Stone, Should Trees Have Standing?Toward Legal Rights For Natural Objects, 45 S. Cal. L. Rev. 450 (1972). The issue here, however, is the less druidical one of whether respondents (who are people) have suffered a violation of their right to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures. U.S. Const., Amdt. 4. That the Fourth Amendment does not protect places is simply unresponsive to the question of whether the Fourth Amendment protects people in other peoples homes. In saying this, I do not, as the dissent claims, clash with the leitmotif of Justice Harlans concurring opinion in Katz, post, at 7, n. 3; au contraire (or, to be more Wagnerian, im Gegenteil), in this regard I am entirely in harmony with that opinion, and it is the dissent that sings from another opera. See 389 U.S., at 361 (Harlan, J., concurring): As the Courts opinion states, the Fourth Amendment protects people, not places. The question, however, is what protection it affords to those people. Generally, as here, the answer to that question requires reference to a place.