Jones, Drones and Homes: How Ancient Property Doctrine Can Expand Notions of Privacy

34 Pages Posted: 29 Sep 2012 Last revised: 6 Mar 2013

Lance Polivy

New York University School of Law

Date Written: September 29, 2012

Abstract

This note explores the majority opinion in United States v. Jones, which held that warrantless GPS tracking of a car for 28 days was a search within the meaning of the Fourth Amendment. Since 1967 Fourth Amendment searches had been evaluated by whether the technique violated reasonable expectations of privacy. However, the majority opinion in Jones articulates a new test: whether the technique is a physical intrusion to constitutionally enumerated area, with the intent to obtain information, that would have been recognized as a search at the time of the Founding. This note faithfully applies this new test to fly-over cases (in the context of domestic drones) and trash searches to determine if the majority in Jones might alter the Court's analysis of previously settled areas of Fourth Amendment jurisprudence and expand Fourth Amendment protections. While Justice Alito’s concurrence feared that the majority opinion would constrict privacy rights, this note concludes that when the Jones holding is applied to certain categories of Fourth Amendment searches — ancient property doctrine will actually increase individual privacy protections from modern law enforcement surveillance techniques.

Keywords: United States v. Jones, Fourth Amendment, Drones, Jones Property Test

Suggested Citation

Polivy, Lance, Jones, Drones and Homes: How Ancient Property Doctrine Can Expand Notions of Privacy (September 29, 2012). Available at SSRN: https://ssrn.com/abstract=2154249 or http://dx.doi.org/10.2139/ssrn.2154249

Lance Polivy (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012-1099
United States

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