Luke Milligan's blog
This morning the U.S. Supreme Court heard oral arguments in City of Los Angeles v. Patel.
Patel addresses the constitutionality of a municipal ordinance requiring hotel operators to maintain guest registry information, and to make such information available to police officers on request without consent, a warrant, or other legal process.
During argument, Tom Goldstein (on behalf of respondents) had an interesting back-and-forth with Chief Justice Roberts regarding "tranquility" and the Fourth Amendment.
MR. GOLDSTEIN: [T]he question is … the loss of the sense of tranquility provided by the Fourth Amendment, that we don’t know how frequently and for what harassing purpose and how—and for what reasons at all that a police officer is just going to come in over and over again.
CHIEF JUSTICE ROBERTS: Have we used that phrase before?
MR. GOLDSTEIN: Which one, Your Honor?
CHIEF JUSTICE ROBERTS: Tranquility.
MR. GOLDSTEIN: I don’t think that word is---
CHIEF JUSTICE ROBERTS: We talk about privacy and all that, but I’m not sure that the Fourth Amendment should be expanded to protect the sense of tranquility.
MR. GOLDSTEIN: I’m trying to --
JUSTICE SCALIA: I have a problem imagining tranquil hotel owners. It’s not what I associate with owning a hotel.
MR. GOLSTEIN: [Tranquility] is the sense of certainty that the Fourth Amendment provides that what you do know is that there are going to be limits on when the police come in and say, show us your papers. Okay? And that’s what we’re talking about.
As I was reading today’s transcript I found myself shouting at my computer screen: “Tranquility's right there! It's in the text! It's right there! In the text!”
I’ve argued for some time that the Fourth Amendment does not simply recognize a “right against unreasonable searches and seizures.” After all, the text of the Fourth Amendment explicitly goes further, providing for a “right to be secure against unreasonable searches and seizures.” And the original meaning of “secure” (i.e., “free from fear”) is likely broad enough to include something along the lines of “tranquility” (which meant “free from agitation”).
A “right to tranquility” is moreover consistent with constitutional structure, literary uses of "secure," and the colonial discourse surrounding the writs of assistance (not to mention the creation of the exclusionary rule in Boyd v. United States and Weeks v. United States).
I recently developed these arguments in The Forgotten Right to Be Secure, 65 Hastings L.J. 713 (2014). The article was discussed in this case in an amicus brief filed by the Electronic Frontier Foundation. Hopefully the "right to be secure" plays a part in Chief Justice Roberts's deliberations on “tranquility” and the Fourth Amendment.