There is a post over at the Volokh Conspiracy on a new 11th Circuit ruling raising an interesting fourth-amendment question in a rather delicate factual context. The dispute is, in essence, whether, for purposes of the fourth amendment, the government has to be looking for something before a given undertaking constitutes a search.
Judge Pryor, writing for the 11th Circuit, says "no." The case involves a fourth-amendment claim by state-school sonography students who claim they were coerced into undergoing transvaginal ultrasounds. Judge Pryor writes:
Inserting a probe into a woman’s vagina is plainly a search when performed by the government. Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search “has undoubtedly occurred.” United States v. Jones, 132 S. Ct. 945, 950–51 & n.3 (2012). The Supreme Court has long recognized that compelled blood and urine tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (citing Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber v. California, 384 U.S. 757, 767–68 (1966)). Even under the broader test that a “search” is “any governmental act that violates a reasonable expectation of privacy,” O’Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each ultrasound clearly constituted a search. “[I]t is obvious” that the “compelled intrusio[n] into the body . . . infringes an expectation of privacy that society is prepared to recognize as reasonable.” Skinner, 489 U.S. at 616 (internal quotation marks and citations omitted).Doe v. Milward, --- F.3d ---, No. 15-15240, slip op. at 10 (11th Cir., Oct. 4, 2016).
Professor Ker does not expressly disagree, but he is not convinced:
... I think there is a sort of Fourth Amendment intent requirement under Footnote 5 of United States v. Jones. Here’s the key language from Jones with my emphasis added:
The concurrence notes that post-Katz we have explained that “‘an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’ ” Post, at 6 (quoting United States v. Karo, 468 U. S. 705, 713 (1984)). That is undoubtedly true, and undoubtedly irrelevant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but “when there is some meaningful interference with an individual’s possessory interests in that property.” Post, at 2 (internal quotation marks omitted). Likewise with a search.
Trespass alone does not qualify [to be a search], but there must be conjoined with that what was present here: an attempt to find something or to obtain information.
Respectfully, Professor Kerr has missed the distinction, although he may have done so because there is a missing term in Judge Pryor's opinion. "Inserting a probe into a woman's vagina," without more, is not plainly a search. It is plainly a trespass. In order for the act to be a search, the probe, or the circumstances of its use, must be such as naturally tend to reveal something that is otherwise unknown. On balance, the more useful opinion is probably Florida v. Jardines, rather than Jones. There, the Court held that information-gathering conducted during a trespass was an unreasonable search, while noting its opinions "holding that the subjective intent of the officer is irrelevant." Florida v. Jardines, 569 U.S. 1, __ (2013).Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. See ibid. Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.Is it possible to square Jones with Soldal['s statement that the reason an officer might enter a house is irrelevant]? I think so, because a government agent can have a purpose to obtain information without a broader investigative or administrative purpose. The question of investigative or administrative purpose is arguably more an issue of motive than intent. It asks, “Why did the officer want to obtain the information?” That is distinct from whether the officer intended to obtain information at all.
An ultrasound, by its nature, is inquisitive: it reveals something otherwise concealed from view. The fourth amendment does not protect persons from unreasonable intrusion, but from unreasonable searches. The mere fact that the government might not care what it finds in the search in no way alters the inherent character of the act. Officers who enter a dwelling and empty all the drawers simply to harass the homeowner have "searched" the premises, even if they never had any intention of locating or carrying away evidence.
The same principle applies under the Milward facts: a state agent who performs a transvaginal ultrasound conducts a search of the subject's abdominal cavity, even if the agent remains indifferent to its contents. The result would be different if the subject were merely imposed upon with a disconnected probe: that activity would not be revelatory either in nature or effect. It would simply be a trespass. Judge Pryor would have strengthened his opinion if he had captured the distinction in the excerpted language.