By Sherry F. Colb
This week on Justia's Verdict, you can find Part 2 of my two-part series of columns examining the constitutionality of routinely sampling DNA from people who are under arrest. In this post, I want to raise a related question -- the question of "pretend friends." As I discussed in my 2002 Stanford Law Review article, What Is A Search?, the Supreme Court has long treated the sharing of one's privacy with a third party as tantamount to relinquishing that privacy, for various purposes. I discussed some of the ramifications of that relinquishment in my last week's post here, Gathering versus Mining Evidence: DNA, heat waves, garbage, and urine.
The Court's "pretend friend" cases include Hoffa v. United States and United States v. White. In these cases, the Court held that the government may send an agent to insinuate himself or herself into your life and listen to (and record and electronically transmit) your confidential communications, without having to obtain a warrant or even have probable cause to justify the undercover operation. The rationale? You have no reasonable expectation of privacy in your friends. When you invite a friend into your home and share secrets, you take the risk that the friend will betray you by repeating your secrets (or even by simultaneously transmitting them), and that risk relinquishes the Fourth Amendment reasonable expectation of privacy you would otherwise have had.
This judgment, in my view, reflects the Court's assumption that only "wrongdoers" are subject to such law enforcement tactics. Oddly, of course, the Court's failure to classify these tactics as Fourth Amendment "searches" likely increased the odds that targets would in fact be innocent people.
As a thought experiment here, I want to consider the "assumption of risk"/"you can't trust your friends" rationale in a different context. Rather than focusing on friends or co-conspirators, consider instead one's expectation of privacy in workers who commonly service the needs of upper-middle-class and wealthy individuals (of the sort who make up the personnel of the U.S. Supreme Court). I am thinking here of housekeepers, whether in homes or hotel rooms, and of babysitters and nannies.
Imagine that the FBI becomes curious about Justice Scalia. They do not have any evidentiary basis for suspecting wrongdoing, but they wonder whether there is something illegal going on in his life. They accordingly send out a federal agent to apply for a job opening in the Scalia household -- as a housekeeper. The applicant is able to gain employment (under false pretenses, as all undercover operations necessarily are). (Alternatively, the agent could gain employment as a housekeeper at a hotel where Justice Scalia likes to stay when he travels to a particular city, thus providing him with even less control over the choice).
Imagine now that in the course of serving as Justice Scalia's housekeeper, Agent John Doe discovers a box of Cuban cigars (with a receipt) and other contraband under the Justice's bed. Can this evidence, uncovered by the FBI, (or the agent's testimony about the evidence) be admitted in a prosecution against Justice Scalia? Under the existing doctrine, the answer ought to be yes. There is nothing to distinguish doctrinally between people invited into your home socially, who then turn out to be law enforcement officers, on the one hand, and people invited into your home to clean it, who then turn out to be law enforcement officers, on the other.
Yet I suspect that the Justices who might have otherwise rejected privacy claims in one's "friends" and associates would be inclined to regard Justice Scalia's hypothetical predicament in a different light. They might very well balk at allowing federal agents to pose as domestic workers and thereby expose the private contents of an employer's home to government scrutiny. For many upper-middle class and wealthy people, it would seem completely unacceptable to have to choose between employing a housekeeper and having privacy from governmental presence in one's home. Privileged people (including the Justices) may enjoy a level of insulation from police insinuation into their groups of friends. But how could someone like Justice Scalia insulate himself from a federal agent posing as a housekeeper?
At the oral argument in United States v. Jones, the case about the constitutionality of using a GPS to monitor a suspect for a month, Chief Justice Roberts asked the Deputy Solicitor General whether it would represent a Fourth Amendment search “if you put a GPS device on all of our [the Justices'] cars, monitored our movements for a month?” The answer was essentially yes. The government lost that case 9-0. It may be that it would take this sort of vulnerability -- the sort that the hypothetical Justice Scalia experienced from the federal agent housekeeper John Doe -- to inspire the Court to revisit Hoffa and White.