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Abstract

On June 28, 2024 the Supreme Court decided City of Grants Pass, Oregon v. Johnson.  The case addressed whether the enforcement of city ordinances regulating camping on public property against individuals including respondents, unhoused individuals residing in the city of Grants Pass, constituted cruel and unusual punishment under the Eighth Amendment.  The Court upheld enforcement of the ordinances and since then approximately 150 cities across the United States have passed similar ordinances or strengthened existing similar laws.  This comment evaluates how Grants Pass is an Eighth Amendment case with Fourth Amendment consequences which sparks a need for a revised Fourth Amendment search analysis in the context of homelessness.  Fourth Amendment search analysis begins with the question of whether a search has occurred in the first place.  The Supreme Court supplies two disjunctive tests for search: first, did the defendant have a reasonable expectation of privacy (known as the Katz test) or, alternatively, was there a physical intrusion of a constitutionally protected area in an attempt to obtain information (known as the Jones test).  In applying these two tests to unhoused individual’s belongings and dwellings, lower courts have routinely found that no Fourth Amendment search has occurred, and therefore no Fourth Amendment right has been infringed.  The lower court’s holdings too often rest on one dominant factor: the defendant was breaking a city ordinance or law by residing where he or she was.  Thus, given that Grants Pass has led to a barrage of new anti-camping legislation, and such legislation has the practical effect of removing the unhoused population from the ambit of Fourth Amendment protection, this comment argues that Fourth Amendment search analysis must be revised.

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