One fine day Ryan Collins went out riding a distinctive orange and black motorcycle. I'm going to assume that the weather was fine and the traffic was fairly light because he was cruising around at speeds approaching 140 mph.
While Mr. Collins may have been having himself quite the ride, the local police were not nearly as thrilled as the reports rolled in of an orange and black motorcycle traveling at a high rate of speed.
Somehow the police discovered that the bike didn't exactly belong to Mr. Collins. Through a little bit of snooping, they discovered the bike in question on a Facebook post. Officers went to Mr. Collins' house and found a tarp covering what appeared to be a bike in the driveway. Officer Rhodes walked up the drive, lifted the tarp and saw the bike - without first obtaining a search warrant.
Officers then waited and arrested Mr. Collins when he returned. After the trial court denied his motion to suppress the discovery of the bike, Mr. Collins was convicted of receiving stolen property.
Last week the US Supreme Court reversed Mr. Collins' conviction on the grounds that Officer Rhodes violated Mr. Collins' fourth amendment protection against unreasonable search and seizure when he lifted the tarp.
The state had argued that this particular incident fell under the so-called vehicle exception to the fourth amendment and that the police were acting lawfully when lifting the tarp off what appeared to be a bike sitting in the driveway of a residence.
The Supreme Court held that the bike was parked in the curtilage of Mr. Collins' house and was not in plain sight since it was covered by a tarp.
Now, while this case is a victory for fourth amendment advocates and anyone under suspicion by the police, it continues a recent trend of basing fourth amendment protections on the concepts of property law. The curtilage is considered to that area immediately outside a person's house -- it could consist of patios, porches, sidewalks, breezeways and driveways. These are areas that aren't actually part of the house - but they are close enough, in some cases, to be considered as such.
Just because something is on the curtilage, however, doesn't mean the police can't walk up to it and examine it. Had Mr. Collins just parked his bike in the driveway in plain sight of anyone driving or walking by, the result of this case would have been the opposite. What saved Mr. Collins was the fact he tossed a tarp over the bike as it sat in his driveway. That meant the only way the police could determine the bike was stolen was to walk up the driveway and lift the tarp - a trespass as the court decided.
While this property-based determination of what constitutes an unreasonable search is helpful in case involving physical evidence, it is not so helpful when the same analysis is applied to data such as e-mails or web searches or information stored on the Cloud. In those instances there is no physical property, there is no curtilage, there is no trespass. When we start talking about digital data we're talking more about a relationship between a person and a set of binary digits.
And if we're looking at the relationship between a person and some data stored on a server somewhere, we don't have 18th century property law to fall back on. Rather then making fourth amendment jurisprudence all about property law concepts, maybe we need to go back and re-ask the question "what is unreasonable?"