Judge Neil Gorsuch: Nominee to be Associate Justice of the Supreme Court: Part Two – Fourth Amendment Jurisprudence

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

Studying Fourth Amendment cases in which Judge Neil Gorsuch has authored a majority opinion, a concurrence, or a dissent, it is my conclusion that Gorsuch enacts a highly disciplined approach to this area of law.  His opinions scrupulously guard the rights of unsympathetic defendants, exhaustively examine the whole corpus of American law to gain an understanding of each case, and go out of their way to ensure that every defendant enjoys the legal protections to which they are entitled at law.  This essay will examine some of the cases I reviewed in arriving at this conclusion.

In U.S. v Carloss, police officers entered the curtilage of the defendant’s home, without a warrant, to conduct a knock and talk, a common police method designed to discover evidence of illegal conduct while talking with whomever answers the door.  In doing so, the officers walked onto the front step of the home, passing numerous “No Trespassing” signs.  Judge David Ebel, writing for the panel majority, found no Fourth Amendment violation from the police “knock and talk.”[1]  Gorsuch wrote a lengthy dissent, turning to common law at the “the founding” to illustrate why he found this search unreasonable.

In this dissent, Gorsuch noted that the government relied on two theories to support their position.  First, the government “suggest[ed] that its officers enjoy an irrevocable right to enter a home’s curtilage to conduct a knock and talk . . . arguing that . . . the knock and talk is an investigative technique approved by the Supreme Court.”[2]  Alternatively, they argued that police possess only a revocable right to walk onto the front step and knock on the door, and that “a homeowner may avoid a knock and talk only by hiding in the home and refusing to answer the door.”[3]

Gorsuch disagreed with both these stances, explaining that “an officer’s leave to gather information is sharply circumscribed when he steps off those thoroughfares and enters the Fourth Amendment’s protected areas,” and that “[t]he founders understood, too, that a search of a constitutionally protected space generally qualifies as unreasonable when undertaken without a warrant, consent, or an emergency.”[4]

Judge Gorsuch then, in a nod to his originalist leanings, noted that “the common law at the time of the founding did not require a property owner to express his intent to revoke a license to enter in any particular way. Indeed, all that was traditionally required were express words … or … an act … indicating an intention to revoke.”[5]  Judge Gorsuch summed up his Carloss dissent with the following words: “Our duty of fidelity to the law requires us to respect all these law enforcement tools. But it also requires us to respect the ancient rights of the people when law enforcement exceeds their limits. In this case the two arguments the government offers to justify its conduct can claim no basis in our constitutional tradition.”[6]

Other cases reveal a similar fealty to the Fourth Amendment’s original intent. In U.S. v. Krueger, Judge Gorsuch concurred with an opinion rejecting the validity of a warrant issued across jurisdictional boundaries.[7]  In U.S. v Ackerman, Judge Gorsuch held that the National Center for Missing and Exploited Children acted as an agent of the government in searching Mr. Ackerman’s effects without a warrant, and that their search of a suspected child pornographer violated his constitutional rights.[8]  In both cases, Judge Gorsuch demonstrated adherence to the law in favor of unsympathetic defendants.

Additionally, in other criminal cases, Gorsuch has shown the capacity to restrain executive overreach.  In U.S. v Cos, Gorsuch dissented from a panel decision affirming the grant of a suppression motion, arguing that the government’s appeal of the motion was untimely.[9]  Specifically, Gorsuch argued that the government should be required to follow the same rules of timely filing as a habeas petitioner.[10]  In U.S. v Games-Perez, Gorsuch criticized circuit precedent preventing a defendant who was not aware of his felon status from presenting a mens rea defense.[11] 

Perhaps no case better illustrates Gorsuch’s skepticism of prosecutorial overreach than his opinion in U.S. v. Rentz.  Rentz involved a question of whether 18 U.S.C. § 924(c)(1)(A) (which prohibits carrying a firearm during a drug-related or violent offence) allows multiple charges from the single use of a firearm.  Gorsuch answered this question in the negative, rebuking government prosecutors for employing syntactical errors to dramatically increase the number of separate charges they could press against a defendant for the single discharge of a firearm.[12]

Gorsuch interpreted the statute using “plain old grade school grammar, [while] the government’s contrary interpretation require[d] some sophisticated syntactical somersaults,”[13] piling on additional charges without proving any further uses, carries, or possessions.  Gorsuch accused the government of myopically focusing on the statute’s adverbial phrases “without even a stolen glance at the verbs those phrases modify.”[14]

Many liberals oppose the nomination of Gorsuch to be on the Supreme Court on various grounds, including skepticism about his willingness to stand up to executive power.  However, taken as a body, Gorsuch’s writings indicate that he will not hesitate to restrain the Executive, defend the Fourth Amendment, and rigorously protect the rights of the accused.

This post is one of a series exploring the background and jurisprudence of Judge Neil Gorsuch.

[1] US v Carloss, 818 F. 3d 988, 999 (10th Cir, 2016).

[2] Id. at 1004.

[3] Id.

[4] Id. at 1007.

[5] Id. at 1004-05.

[6] Id. at 1015.

[7] U.S. v. Krueger, 809 F.3d 1109, 1117-18 (10th Cir. 2015).

[8] U.S. v. Ackerman, 831 F.3d 1292, 1295 (10th Cir. 2016).

[9] U.S. v. Cos, 498 F.3d 1115, 1137 (10th Cir. 2007).

[10] See id.

[11] U.S. v. Games-Perez, 667 F.3d 1136, 1143 (10th Cir. 2012).

[12] U.S. v. Rentz, 777 F.3d 1105, 1110-11 (10th Cir. 2015) (en banc).

[13] Id. 

[14] Id.