Donald Trump has nominated a number of egregiously unqualified and objectionable people to the federal judiciary, but thus far only one truly outrageous nominee has been confirmed.
John K. Bush, who serves on the 6th U.S. Circuit Court of Appeals, is a former blogger who spread birther conspiracies, used the word faggot in a speech, and urged Congress to “gag” “Mama Pelosi.” He nevertheless received unanimous Republican support in the Senate.
On Wednesday, Bush handed down his first published opinion in a constitutional case, Peffer v. Stephens. He used the occasion to create a new rule that guts the Fourth Amendment’s protections against unreasonable searches and seizures. In an astonishingly broad decision, Bush held that if a suspect may have used his home computer in commission of a crime, law enforcement officials have probable cause to search his entire house. Most of Trump’s judicial appointees share a similar jurisprudential philosophy. Bush’s ruling provides an early warning that these judges will not be eager to stand up for Americans’ right to privacy.
The facts of Peffer are twisty and colorful. Jesse Peffer served as a caregiver for medical marijuana patients in Michigan, permitting him to grow a limited number of cannabis plants. When his plants produced more marijuana than he needed, Peffer sold the surplus to Tom Beemer, who ran a medical marijuana dispensary. Unbeknownst to Peffer, Beemer also served as a confidential informant to state and local police. One day, Beemer asked Peffer to sell him more surplus marijuana than is permitted under state law. Peffer refused, but grew suspicious and agreed to meet with Beemer. The police stopped Peffer as he drove to the meeting and found more marijuana in his car than he was licensed to possess. Peffer was arrested and charged.
Eight months later, the local school district and child services agency received typewritten letters purporting to be from one of the police officers who arrested Peffer. These letters accused Beemer of distributing a controlled substance and becoming a confidential informant “in exchange for immunity/leniency in sentencing.” More than a year later, flyers appeared around town identifying Beemer as a confidential informant. While investigators identified a number of potential suspects, they decided it was most likely Peffer who authored and distributed the letters and flyers.
Here’s where the Fourth Amendment came into play. In order to search Peffer’s house for evidence, the police needed a warrant. In order to obtain a warrant, the police had to provide “probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” To fulfil this obligation, one detective submitted an affidavit to the court asserting he had probable cause to believe Peffer’s residence “may contain evidence of the crime of Impersonating a Police Officer and Witness Intimidation.” The detective asked permission to search Peffer’s house for “computer hardware,” “computer-related equipment,” printers, scanners, any “electronic storage device,” and Peffer’s personal email.
A judge issued a warrant granting this request. The police promptly ransacked the house and seized all the electronics they could find. Law enforcement searched the items but apparently found nothing incriminating; prosecutors elected not to press charges. Peffer and his wife sued, alleging a violation of their Fourth Amendment rights. A lower court threw out their suit, and Bush affirmed its decision in a unanimous decision for a three-judge panel. (Bush was joined by two conservative Republican appointees.)
Bush correctly noted that at the heart of the case lay “a question of first impression” for the 6th Circuit: Can a judge issue a search warrant that allows the police to search an individual’s entire residence for electronics based on an inference that he might have committed a crime using a computer that may or may not be in his home?
“This question,” Bush wrote, “is not a difficult one.” Turning to “basic principles,” Bush asserted that “it is reasonable” to “assume that a person keeps his possessions where he resides.” And if “an affidavit presents probable cause to believe that a crime has been committed by means of an object,” Bush wrote, a judge “may presume that there is a nexus between that object and the suspect’s current residence.” Therefore, because Peffer may have committed a crime using a computer, and that computer might be in his house, the police have constitutional authority to scour his entire home in search of evidence.
This ruling is now controlling precedent in Kentucky, Michigan, Ohio, and Tennessee, the states within the 6th Circuit. It is almost certainly incorrect. In 2016, the 6th Circuit explained that, under the Fourth Amendment, the police must establish a “nexus” between a suspect’s crimes and his residence to justify a home search. In that case, the defendant was caught leaving a drug deal with more than 500 grams of heroin. The court held that “a suspect’s status as a drug dealer” does not justify a search of his home. Instead, it demanded “facts that directly connect the residence with the suspected drug dealing activity.”
That principle should clearly apply to Peffer’s case. The police presented no facts indicating Peffer created or printed the fliers at home—or that he had a computer in his house. Even if law enforcement knew Peffer owned a computer and printer, the warrant would still be overbroad. Most Americans now own a computer, and the police can frequently concoct some tenuous theory as to how that computer might have factored into some suspected crime. If Bush is right, and the Peffer warrant was constitutionally sound, then the Fourth Amendment’s protections of the home have now been rendered toothless by modern technology.
Bush may not prove to be a wholly irredeemable judge. In another opinion released on Wednesday, he sided with an immigrant who faced violent persecution in her home country, giving her another shot at asylum in the United States. But if Peffer is any indication of his Fourth Amendment views, Bush may push his court far to the right on individual privacy. One year into his term, Trump continues to push through judicial nominees at a record pace; the Senate Judiciary Committee advanced 17 on Thursday alone, many of them boasting the same conservative legal pedigree as Bush. Trump’s presidency won’t last forever. But judges like Bush will be with us for decades to come.