Updated draft: The Two Tests of Search Law

"What is the Jones Test, and What Does That Say About Katz?"

I have posted a revised draft of my forthcoming article, The Two Tests of Search Law: What is the Jones Test, and What Does That Say About Katz?, which will be published in the Washington University Law Review.  You can download it here, and the abstract is below.

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.

Comments

[SMP0328]

Jones augmented Katz. The test is now:

1 - Did the government physically intrude on a person's body, land, or chattel without a warrant or exigent circumstances? If yes, search invalid; if now, go to question 2

2 - Did the searched party have a reasonable expectation of privacy? If yes, and no warrant or exigent circumstances, search invalid; otherwise, search valid.

[wvattorney13]

nm

[Bill R]

Agreed. Silverman addresses historical physical search, Katz extends the test for electronic search.

Prof Kerr quotes Scalia in Jones:

The Katz reasonable-expectations test “has been added to, not substituted for,” the traditional property-based understanding of the Fourth Amendment, and so is unnecessary to consider when the government gains evidence by physically intruding on constitutionally protected areas.

The purpose of a search is to uncover facts, not things. Historically facts could only be found in papers, effects, etc -- physical things -- or from a witness who had to be present.

In Jones, the facts were the vehicle's movements. Placing a GPS on the car gathered those facts. Placing a fridge magnet on the car wouldn't have, even though it's still a physical intrusion. It's the seeking of information that makes it a search (that's literally the definition of the word).

When I read some court decisions, I often wonder whether they would have reached the same conclusion if the circumstances were reversed. Instead of the government doing X to citizen Y, suppose the actions were reversed: would the judge or government agent be comfortable having a private citizen do the same thing to them? If the answer is "no", the action should require a warrant. I think of this as the Raiders of the Lost Ark test: "Asps. Very dangerous. You go first.

[wvattorney13]

I'm trying to parse a meaningful legal difference between a trespass and an intrusion.