[Orin Kerr] What is the intent requirement of the Fourth Amendment?

On Tuesday, the 11th Circuit identified a circuit split on an interesting Fourth Amendment question: For a Fourth Amendment “search” to occur, is it only the government’s act that matters, or is there also a purpose requirement for the government’s act?

The issue arose in Doe v. Milward, which involved extremely unusual facts for a Fourth Amendment case. The plaintiffs in the case are female students studying at a public college to become medical technicians specializing in sonography. The plaintiffs claim that employees of the college pressured the plaintiffs to perform transvaginal ultrasounds on each other as a condition of staying enrolled at the school. According to the complaint, the defendants believed that female students would be better sonographers if they underwent transvaginal ultrasounds themselves. (To be clear, it’s not known whether these allegations are true. These are just the claims in the complaint, which at this point in the case are assumed to be true.)

Among the plaintiffs’ arguments is that effectively forcing them to undergo the ultrasounds violates the Fourth Amendment because a transvaginal ultrasound is a Fourth Amendments search. The defendants responded that there was no search because the government actors at the school did not have an investigative or administrative purpose in forcing the ultrasounds. The district court agreed with the defendants.

In an opinion by Judge William Pryor, the 11th Circuit ruled that the compelled ultrasounds alleged in the complaint were clearly Fourth Amendment searches regardless of their purpose:

Inserting a probe into a woman’s vagina is plainly a search when performed by the government. Where the government physically intrudes on a subject enumerated within the Fourth Amendment, such as a person, a search “has undoubtedly occurred.” United States v. Jones, 132 S. Ct. 945, 950–51 & n.3 (2012). The Supreme Court has long recognized that compelled blood and urine tests implicate the Fourth Amendment. Skinner v. Ry. Labor Executives’ Ass’n, 489 U.S. 602, 616 (1989) (citing Winston v. Lee, 470 U.S. 753, 760 (1985); Schmerber v. California, 384 U.S. 757, 767–68 (1966)). Even under the broader test that a “search” is “any governmental act that violates a reasonable expectation of privacy,” O’Rourke v. Hayes, 378 F.3d 1201, 1207 (11th Cir. 2004), each ultrasound clearly constituted a search. “[I]t is obvious” that the “compelled intrusio[n] into the body . . . infringes an expectation of privacy that society is prepared to recognize as reasonable.” Skinner, 489 U.S. at 616 (internal quotation marks and citations omitted).

Although the employees did not conduct the transvaginal ultrasounds to discover violations of the law, the word “search” in the Fourth Amendment does not contain a purpose requirement.

Pryor relied heavily on the Supreme Court’s 1992 decision in Soldal v. Cook County that stated the following:

[T]he reason why an officer might enter a house or effectuate a seizure is wholly irrelevant to the threshold question whether the [Fourth] Amendment applies. What matters is the intrusion on the people’s security from governmental interference. Therefore, the right against unreasonable seizures would be no less transgressed if the seizure of the house was undertaken to collect evidence, verify compliance with a housing regulation, effect an eviction by the police, or on a whim, for no reason at all. As we have observed on more than one occasion, it would be “anomalous to say that the individual and his private property are fully protected by the Fourth Amendment only when the individual is suspected of criminal behavior.” 506 U.S. 56, 69 (1992) (emphases added) (quoting Camara v. Mun. Court of San Francisco, 387 U.S. 523, 530 (1967)).

Pryor then recognized that other circuits had adopted a different view of the law:

We acknowledge that several of our sister circuits require an investigative or administrative purpose even after Soldal in decisions involving “peeping Toms,” but we find their reasoning unpersuasive. See, e.g., Doe v. Luzerne Cty., 660 F.3d 169, 179 (3d Cir. 2011) (concluding no search occurred when a male police officer filmed a female police officer in the shower); Poe v. Leonard, 282 F.3d 123, 137 (2d Cir. 2002) (similar). For instance, the decision in Luzerne County did not even cite Soldal. The decision in Poe did, but it confined Soldal to disputes arising from an investigation by the government as an employer or in the course of an official performing a traditional governmental function. Poe, 282 F.3d at 136–37. In support, the court in Poe relied on five Supreme Court decisions, including Soldal, that it int