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The Fourth Amendment has no ‘culinary convenience’ exception

by Timothy Snowball, opinion contributor - 08/29/18 1:30 PM ET

Chicago: Land of major league sports, parks, foodies, and the some of the worst crime in the country. In 2012, the Windy City tackled one of the most pressing issues of the day, a situation so dangerous, there literally was no other option but for the government to get involved. What issue am I referring to? The ability of food trucks to traverse Chicago’s streets without the government tracking their every movement. The horror!

City law requires the food truck owners to attach GPS tracking devices to their vehicles as a condition of keeping their food truck permits. They are required to collect information about their movement and to make that information available to the government and public.

{mosads}One food truck proprietor challenged Chicago’s GPS tracking rule as a violation of their Fourth Amendment rights against unreasonable warrantless searches by the government. The city responded that the rule is constitutional because it merely requires that the GPS trackers be affixed to the trucks and they did not actually attach them themselves. But this is a distinction without a difference.

According to Chicago Mayor Rahm Emanuel, the GPS-tracking requirement is necessary “so that the city and consumers can follow [food truck] locations.” But the city is less concerned with helping consumers find food trucks than it is with surveilling business owners. After all, there are plenty of ways for food truck owners to tell customers where they can be found without government surveillance.

The Fourth Amendment provides that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” For the first 178 years of the American Republic, the essence of Fourth Amendment violations was not the breach of privacy but the “invasion of [the] indefeasible right of personal security, personal liberty, and private property.”

This property-oriented understanding of the Fourth Amendment was sidelined by a privacy-based understanding in the 1960s, when the Supreme Court ruled that review of Fourth Amendment issues was up to “a judge’s personal sensibilities about the ‘reasonableness’ of … expectations or privacy.”

In recent cases, however, the Supreme Court has made clear that the Fourth Amendment still provides specific protection for private property, including effects — personal property. For example, in 2012 the court found that the government’s warrantless attachment of a GPS tracker to a vehicle was a violation of the Fourth Amendment. Not because of any alleged privacy interests, but because the vehicle was private property. Since then, the justices have made clear that property rights exist as an independent and actionable category protected by the Fourth Amendment.

Which brings us back to Chicago. After several years of litigation in the Illinois judicial system, the case has made its way to the Illinois Supreme Court. Pacific Legal Foundation filed a friend-of-the-court brief on behalf of food truck operators, arguing that they have a property interest in their vehicles that is separate and distinct from any implicated privacy concerns that should be recognized by the court.

Supreme Court decisions, including United States v. Jones, establish unequivocally that vehicles such as food trucks are protected personal property under the Fourth Amendment. A Fourth Amendment search occurs when government requires physical trespass on protected property for the purpose of collecting information without the owner’s consent, regardless of whether the search occurs directly by government agents or as a condition of licensure. The searches affected by the GPS tracking rule do not qualify for lax review, as so-called “administrative searches,” an exception so ill-defined and amorphous that it threatens to swallow the rule it purports to modify.

If a food truck is protected property, then a required physical trespass, direct or indirect, constitutes a search, and a warrant is required under the Fourth Amendment. For these reasons, we encourage the Illinois Supreme Court to find the Chicago’s GPS-tracking rule is unconstitutional.