The Curious History of Fourth Amendment Searches
Orin S. Kerr
George Washington University - Law School
September 30, 2012
Supreme Court Review, Forthcoming
GWU Legal Studies Research Paper No. 2012-107
GWU Law School Public Law Research Paper No. 2012-107
In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court restored the trespass test of Fourth Amendment law: Any government conduct that is a trespass onto persons, houses, papers, or effects is a Fourth Amendment 'search.' According to the Court, the trespass test had controlled the search inquiry before the reasonable expectation of privacy test was introduced in Katz v. United States, 389 U.S. 347 (1967). Although Katz had rejected the trespass test, Jones restored it. This essay examines the history of the Fourth Amendment search doctrine and reaches the surprising conclusion that the trespass test never existed. Pre-Katz decisions did not adopt a trespass test, and instead grappled with many of the same questions that the Court has focused on when applying the reasonable expectation of privacy test. The idea that trespass controlled before Katz turns out to be a myth of the Katz Court: Katz mischaracterized Fourth Amendment history to justify a break from prior precedent. Jones thus restores a test that never actually existed. The essay concludes by considering both the doctrinal and theoretical implications of the surprising history of the Fourth Amendment search doctrine.
Number of Pages in PDF File: 31
Keywords: Fourth Amendment, Katz, reasonable expectation of privacy
JEL Classification: K14, K42Accepted Paper Series
Date posted: October 1, 2012 ; Last revised: March 27, 2013
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