In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court added a second test for what government action counts as a Fourth Amendment “search.” Since the 1970s, the Supreme Court had held that the government commits a search when it violates a person’s reasonable expectation of privacy. Jones added that the government also commits a search when it trespasses on to a person’s “persons, houses, papers, and effects.” As I explained in an article responding to Jones, it is hardly clear what kind of trespass test Jones adopts. Although Jones purports to restore a preexisting trespass test, no trespass test existed that the court could restore. As a result, the significance of Jones hinges on just what kind of trespass test courts interpret Jones to have adopted.
In light of that uncertainty, I was fascinated by a new decision, Schmidt v. Stassi, from the Eastern District of Louisiana last week. Michael Schmidt is a suspect in the 1997 murder of Eugenie Boisfontaine. You may have heard of the case, as the investigation is the subject of the Discovery Channel TV show “Killing Fields.” Investigators wanted to get a DNA sample from Schmidt, so they followed his car. When Schmidt drove to a local strip mall, parked and went inside a store, an agent used a cotton swab to wipe the exterior door handle on Schmidt’s Hummer to collect a DNA sample. Schmidt sued the officers, claiming that swabbing his car door handle was an unlawful Fourth Amendment search.
In the new decision, Judge Lance M. Africk holds that collecting the DNA from the door handle using the cotton swab was a Fourth Amendment search because it trespassed on to the car. From the opinion:
Here, the search involved the physical touching of Schmidt’s Hummer in a public parking lot. The search, however, did not damage the Hummer in any way. Accordingly, this Court has to make two determinations when evaluating whether a Fourth Amendment search occurred:
• Does the trespass-trigger for Fourth Amendment coverage extend to a trespass to chattels?
• If so, was the physical touching a trespass to chattels even though the touching did not harm or otherwise affect the Hummer?
Jones—which addressed a trespass against a car—settles that a trespass to chattles can constitute a Fourth Amendment search regardless of whether there is a reasonable expectation of privacy. See 565 U.S. at 410 (observing that officers “trespassorily inserted” the GPS tracker on the Jeep); see also id. at 419 & n.2 (Alito, J., concurring) (implying Court was concluding that search was a trespass to chattles). Thus, just as a trespass to land can constitute a Fourth Amendment search, a trespass to chattles may as well. See, e.g., United States v. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016). And there is no question that an automobile—unlike an open field—is protected by the Fourth Amendment: an automobile is “an effect as that term is used” in the Fourth Amendment. Jones, 565 U.S. at 404.4
But was this a trespass to chattles? That is a trickier issue. As Justice Alito’s Jones concurrence explained, the elements of the tort have changed since the founding. “At common law, a suit for trespass to chattels could be maintained if there was a violation of the dignitary interest in the inviolability of chattels.” 565 U.S. at 419 & n.2 (Alito, J., concurring) (internal quotation marks omitted). Meanwhile, “today there must be some actual damage to the chattel before the action can be maintained.” Id. (internal quotation marks omitted). So the choice of a particular understanding of trespass can be outcome determinative when applying Jones if a search does not damage or otherwise affect a particular chattel.
The Court concludes that it should follow the view that an officer need not cause damage before committing a trespass to chattels. Not only is that the view of the Second Restatement of Torts, see Restatement (Second) of Torts § 217,5 but it also has the added advantage of not making the scope of the Fourth Amendment turn on whether someone scratches the paint.
The officers argued that Schmidt had abandoned his DNA by leaving it out in public for anyone to collect, analogizing the DNA to the trash left by the side of the road in California v. Greenwood. The court reasoned that Greenwood is inapplicable because the facts here involved a trespass:
[W]hatever the constitutionality of searching Schmidt’s curbside garbage for his abandoned DNA (a question on which the Court expresses no opinion), the officers’ argument that they may trespass to acquire “abandoned” property is not viable post-Jardines. See 133 S. Ct. at 1417 (“That the officers learned what they learned only by physically intruding on [defendant’s] property to gather evidence is enough to establish that a search occurred.”).
The Court concludes that the undisputed facts of this case establish that the officers committed a trespass to chattels when they swabbed Schmidt’s Hummer. Under Jones that trespass also constituted a Fourth Amendment search. Thus, Schmidt is entitled to partial summary judgment in that the swabbing constituted a search under the Fourth Amendment.
The opinion then “stresses that given the present procedural posture—the parties addressed only the threshold issue of whether the swabbing was a Fourth Amendment search—the Court expresses no opinion” on whether the search was reasonable. Instead, Africk concludes that qualified immunity applies either way because the law is unsettled:
[T]he law is simply too unsettled after Jones for the Court to conclude that it is “beyond debate,” Ashcroft v. al-Kidd, 563 U.S. 731, 741 (2011), that the officers performed a Fourth Amendment search. Neither Jones nor Jardines is precise as to the body of property law this Court is supposed to follow when applying Jones’s trespass test. That unanswered question at the time of the swabbing would permit a reasonable officer to conclude that the swabbing did not constitute a Fourth Amendment search.
For example, a reasonable officer could have concluded—just as the Supreme Court has in the Fifth Amendment context—that Jones-triggering trespasses are “determined by reference to existing rules or understandings that stem from an independent source such as state law.” Georgia v. Randolph, 547 U.S. 103, 144 (2006) (Scalia, J., dissenting). A reasonable officer could then pivot from that understanding of the Fourth Amendment, and conclude that because the brief, harmless, nearly imperceptible touching would not constitute an actionable trespass under certain understandings of modern tort law, see 565 U.S. at 419 & n.2 (Alito, J., concurring), it did not constitute a Jones-triggering trespass. Therefore qualified immunity is proper: an officer should not be denied qualified immunity simply because he or she looked to what an actionable trespass was as opposed to the more technical definition of a trespass.
Notably, the idea here is that collecting the DNA was a search because it interfered with Schmidt’s rights in the car, not in the DNA itself. That’s different from the reasonable-expectation-of-privacy cases on collecting DNA, which generally focus on the potential privacy invasion in the testing of the DNA sample to reveal sensitive information.
For related issues, see the petition for certiorari I filed in Arzola v. Massachusetts in 2015, together with the state’s brief in opposition and our reply brief. The Supreme Court denied the petition in Arzola, but I think it’s a useful starting point to see how the trespass framework may change Fourth Amendment rights in the context of DNA collection and analysis.