(Continued from yesterday’s post.)
Scalia understood, when he needed to, that words changed their meaning, and stretched to accommodate cases that didn’t exist for the founders. What, in the sense of the Fourth Amendment, counts as a “search”? Scalia took up this lexical question in Kyllo vs. U.S, writing that infrared scanning of a house to detect excess heat (generated, the police correctly inferred, by a marijuana greenhouse within) did indeed constitute a search. This is not the kind of search the Framers contemplated. Nonetheless, says Scalia:
When the Fourth Amendment was adopted, as now, to “search” meant “[t]o look over or through for the purpose of finding something; to explore; to examine by inspection; as, to search the house for a book; to search the wood for a thief.” N. Webster, An American Dictionary of the English Language 66 (1828) (reprint 6th ed. 1989)
How to read this? The written definition can be read to include viewing a house from the outside, and indeed, Scalia brings it up in this context:
One might think that the new validating rationale would be that examining the portion of a house that is in plain public view, while it is a “search”1 despite the absence of trespass, is not an “unreasonable” one under the Fourth Amendment.
But visual inspection of a house has not been classified as search by the Court — “perhaps,” Scalia says, “in order to preserve somewhat more intact our doctrine that warrantless searches are presumptively unconstitutional.”
In fact, it’s pretty clear from other Scalia opinions that he chooses a meaning for the word “search” which is simultaneously more restrictive than the dictionary definition — it excludes visual inspection of a house — and more inclusive than the contemporary plain-language meaning. To push a stereo away from the wall and look at its serial number, as in Arizona v. Hicks, is not to “search” the stereo; it’s not even clear whether, in standard English, a stereo can be searched, unless by pulling open the casing and digging through its insides. But in Scalia’s majority opinion there, the moving of the stereo is what creates the search:
A truly cursory inspection – one that involves merely looking at what is already exposed to view, without disturbing it – is not a “search” for Fourth Amendment purposes, and therefore does not even require reasonable suspicion… [t]aking action, unrelated to the objectives of the authorized intrusion, which exposed to view concealed portions of the apartment or its contents, did produce a new invasion of respondent’s privacy unjustified by the exigent circumstance that validated the entry. This is why, contrary to JUSTICE POWELL’S suggestion, post, at 333, the “distinction between `looking’ at a suspicious object in plain view and `moving’ it even a few inches” is much more than trivial for purposes of the Fourth Amendment. It matters not that the search uncovered nothing of any great personal value to respondent – serial numbers rather than (what might conceivably have been hidden behind or under the equipment) letters or photographs. A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”
So a “search,” for Scalia, requires observation of something that might reasonably be expected to be private, but doesn’t require looking inside of the thing searched. I think that’s a pretty good definition; but it’s not what’s in the dictionary, it’s not the way we use the word in plain Enlglish, and Scalia makes no claim that it’s what was in the Framers’ minds. It’s a definition you choose in order to achieve a goal, the goal of a workable evidential rule that suits our — or someone’s — sense of justice.
And that’s why it grates when Scalia says “[a] search is a search.” So matter-of-fact, so direct; but so utterly opposite to what’s actually happening! He should have said “A search is what we define a search to be.”
In light of Scalia’s take on statistical sampling, his rejection of Powell’s dissent is interesting:
As for the dissent’s extraordinary assertion that anything learned through “an inference” cannot be a search, see post, at 4-5, that would validate even the “through-the-wall” technologies that the dissent purports to disapprove. Surely the dissent does not believe that the through-the-wall radar or ultrasound technology produces an 8-by-10 Kodak glossy that needs no analysis (i.e., the making of inferences)
To measure radiation emanating from the outside of a house, and to infer by technological means something about the contents of the interior that can’t be directly observed: this, for Scalia, is a search. To count all the inhabitants of a city you can find, and to infer by technological means something about the people who couldn’t be directly observed: that, Scalia says, isn’t counting. In Kyllo, Scalia is happy to speculate about future technologies that will make his view more obviously correct, as soon as they exist (“The ability to “see” through walls and other opaque barriers is a clear, and scientifically feasible, goal of law enforcement research and development.”) In Commerce, his vision of technological progress in statistics is decidedly more pessimistic. Why?