The Volokh Conspiracy
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What is the Jones Property Test, and How Is It Different From Katz?
The final version of my new article has been published.
The Washington University Law Review has just published my new article, "The Two Tests of Search Law: What Is the Jones Test, and What Does That Say About Katz?" Here's the abstract:
Fourth Amendment law has two "search" tests: The Katz privacy test and the Jones property test. Lower courts are not sure 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 accurate interpretation of both tests that shows the continuing importance of Katz.
I had a lot of fun nerding out on the often-forgotten case of Silverman v. United States (1961) when researching this article. Silverman is all but ignored these days, but I think it shouldn't be: You can't understand what Katz did in 1967, or what Jones did in 2012 in returning to pre-Katz law, without understanding what Silverman did (and didn't do) in 1961. Once you understand Silverman, what happened later fairly neatly falls into place, I think.
