Life on Streets and Trails: Fourth Amendment Rights for the Homeless and the Homeward Bound
Jackson, Wesley C., Vanderbilt Law Review
You shall have the same rule for the sojourner and for the native, for I am the LORD your God.
- Leviticus 24:22 1
People who read law review articles usually have the resources to temporarily abscond from society on a whim, perhaps to the nearest trailhead, and begin a trek through the woods. Such readers, if they choose a well-maintained trail frequented by long-distance hikers, may come across a simple, three-sided cabin known as a shelter. There they might find a grimy and unwashed bunch, talking amongst themselves using jargon such as "blazes" and "trail angels."2 Some may recognize them as "thru-hikers"3 and wonder how long the scrawny, bearded, and overloaded travelers have been at it. But some may ask if these apparent vagabonds have not taken residence in the humble shelter out of necessity. In fact, many homeless individuals leave the urban streets for hiking trails where their appearance and drifting lifestyle are not as quickly frowned upon.
People often confuse long-distance backpackers with homeless "squatters." A visitor to the wealthy community of Kent, Connecticut, once asked a shop owner "how a town like Kent could have such a serious homeless problem," referring to the numerous Appalachian Trail hikers who walk to Kent from the wilderness for resupplying and refreshments.4 While a benign misunderstanding may be comical, park rangers warn that failing to distinguish genuine hikers from squatters can have fatal consequences. Consider, for example, Gary Michael Hilton, an "apparently homeless" predator who "spent months migrating up and down the Appalachian Trail" before abducting and murdering a twenty-four-year-old experienced hiker, Meredith Emerson, on the Appalachian Trail at Blood Mountain in North Georgia.5 Of course, not all homeless denizens of the backcountry are dangerous, just as some recreational hikers have their own criminal proclivities.6 The intersection of the homeless and recreational hikers is no coincidence. On the one hand, those who have the means to live comfortably often look for ways to live more simply, even if only as a temporary escape from their complicated lives, and thus venture into the woods with just a few necessities of life.7 On the other hand, those who have nothing except the necessities of life may make their way to the campsites and hiking trails in the backcountry because society has deemed it appropriate to sleep on the ground in the wilderness, but not in the city. In fact, about seven percent of the nation's homeless people live in rural areas.8
This combination produces an interesting legal result in Fourth Amendment jurisprudence. When the privileged decide to live like the homeless, they bring with them their expectations of constitutional protections, and courts generally respect these expectations as the "reasonable expectations of privacy" that society is willing to afford.9 This suggests that homeless individuals should enjoy the de facto protection created by outdoorsmen's expectations of privacy. Even though society might not otherwise give homeless individuals the rights associated with reasonable expectations of privacy, the homeless deserve such rights because they live similarly to recreational outdoorsmen.
Thus, greater Fourth Amendment protections for the homeless may be a secondary implication of society's appreciation for outdoor recreation. However, the fact that those protections are secondary raises the question of whether basing Fourth Amendment protections for one (small and marginalized) segment of society on what everyone else deems to be reasonable lends enough constitutional protection to the homeless in general. Indeed, society most likely does not deem the actions and choices of homeless people to be reasonable; this public bias may forestall any fair evaluation of homeless behavior.10 Consider, for example, the testimony of Gary Wayne Grimes, a homeless man who claims to have been unreasonably attacked by a police dog while sleeping next to a building one night. …