New Draft Article: The Two Tests of Search Law

There are two tests for what is a Fourth Amendment search. But what are they?

I recently posted to SSRN a new draft article, The Two Tests of Search Law: Reconciling Katz and Jones. Here's the abstract:

Fourth Amendment law has two "search" tests: The Katz privacy test and the Jones property test. Lower courts don't know what the difference is between them, however, or whether the Jones test is based on trespass law or the mechanics of physical intrusion. The result is a remarkable conceptual uncertainty in Fourth Amendment law. Every lower court recites that there are two search tests, but no one knows what one test means or how it relates to the other.

This Article argues that the Jones test hinges on physical intrusion, not trespass law. Jones claimed to restore a pre-Katz search test, and a close look at litigation both before Katz and after Jones shows an unbroken line adopting an intrusion standard and (where it has arisen) rejecting a trespass standard. This understanding of Jones is not only historically correct, but also normatively important. How we understand Jones tells us how to understand Katz. The intrusion approach offers an appealing interpretation of both tests that may prevent Katz's rejection by a Supreme Court otherwise inclined to overturn it.

You can download the draft here.  This is just a draft, so comments and suggestions are very welcome.

Comments

[wvattorney13]

The problem I have not been able to solve is that a "Jones as a trespass" theory would seem to invalidate all sting operations conducted on private property. Jardines seemed to confirm this theory--that although generally a visitor is entitled to be on the front porch, the visitor cannot be there for a purpose that you wouldn't allow.

So how could any store, for example, be subject to a 20 year old police agent attempting to buy beer? The general public has an invitation to shop there, but if the owner knew that the 20 year old was there as a police informant, he certainly did not give the authority to enter for that purpose. Sort of a trespass ab initio theory.

But I also cannot imagine courts ruling those stings to be illegal. But Jones would seem to say that they certainly are.