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Can anyone give me a quick summary about how this affects search law (if at all)? Apparently we need to know it...

It appears that after Jones the Katz Test now also has a physical trespass element to it in order for a search to be found. So, in a way, Olmstead is back. Just that now its Katz + Olmstead.

However, while a trespass is a strong factor in determining whether a search has occured, it is not determanitive. The subjective and objective expectations of privacy still mainly govern. But, anytime a physical trespass is thrown into the mix, there will be a stronger presumption of a search.

Good luck!

So, obviously trespass is implicated when you walk onto someone's property and observe something, but does this mean a trespass also occurs when you attach a GPS device to something, like a car in the possession of the defendant? Is this distinguished from Knotts where the cops put the beeper in the canister before they gave it to the defendant, and so it wasn't a trespass? For all intents and purposes, is trespass just another word for seizure?

Thanks for the help dude.

"Justice Scalia wrote the majority opinion, which holds that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search."

"According to Justice Scalia, the key to the case is that “[t]he Government physically occupied private property for the purpose of obtaining information.” That is, the government trespassed when it undertook the “physical intrusion” of installing the device. And a trespass “conjoined with . . . an attempt to find something or to obtain information” constitutes a search for Fourth Amendment purposes. Indeed, according to Justice Scalia, such an intrusion onto private property for the purpose of gathering information was exactly the type of conduct the Framers of the Fourth Amendment intended to prevent."

So, having the GPS on car is not the trespass. The trespass was the act of installing it. You cant have one without the other, but its important to keep in mind the distinction.

Got it, thanks!

gdane wrote:"Justice Scalia wrote the majority opinion, which holds that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search."

"According to Justice Scalia, the key to the case is that “[t]he Government physically occupied private property for the purpose of obtaining information.” That is, the government trespassed when it undertook the “physical intrusion” of installing the device. And a trespass “conjoined with . . . an attempt to find something or to obtain information” constitutes a search for Fourth Amendment purposes. Indeed, according to Justice Scalia, such an intrusion onto private property for the purpose of gathering information was exactly the type of conduct the Framers of the Fourth Amendment intended to prevent."

So, having the GPS on car is not the trespass. The trespass was the act of installing it. You cant have one without the other, but its important to keep in mind the distinction.

Don't forget U.S. v. Maynard where the court held that tracking someone with a GPS for a month IS a search because the goings and comings of a person throughout the course of an entire month is not "available to the public".

Teoeo wrote:

gdane wrote:"Justice Scalia wrote the majority opinion, which holds that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search."

"According to Justice Scalia, the key to the case is that “[t]he Government physically occupied private property for the purpose of obtaining information.” That is, the government trespassed when it undertook the “physical intrusion” of installing the device. And a trespass “conjoined with . . . an attempt to find something or to obtain information” constitutes a search for Fourth Amendment purposes. Indeed, according to Justice Scalia, such an intrusion onto private property for the purpose of gathering information was exactly the type of conduct the Framers of the Fourth Amendment intended to prevent."

So, having the GPS on car is not the trespass. The trespass was the act of installing it. You cant have one without the other, but its important to keep in mind the distinction.

Don't forget U.S. v. Maynard where the court held that tracking someone with a GPS for a month IS a search because the goings and comings of a person throughout the course of an entire month is not "available to the public".

Not sure if we covered that case but our write-on competition had to do with this exact topic and I think Maynard was part of the packet's contents. It is actually a pretty cool issue, the "mosaic" of information or whatever that you get from tracking someone for an extended period of time. Fourth Amendment stuff in generally is just really interesting, I think.

Teoeo wrote:Don't forget U.S. v. Maynard where the court held that tracking someone with a GPS for a month IS a search because the goings and comings of a person throughout the course of an entire month is not "available to the public".

Maynard is the decision below in Jones. Its not a supreme court case, its a DC Circuit case. In Jones, the Supreme Court basically ignored the mosiac theory adopted by the DC Circuit and applied Scalia's trespass alternative to Katz.

Geist13 wrote:

Teoeo wrote:Don't forget U.S. v. Maynard where the court held that tracking someone with a GPS for a month IS a search because the goings and comings of a person throughout the course of an entire month is not "available to the public".

Maynard is the decision below in Jones. Its not a supreme court case, its a DC Circuit case. In Jones, the Supreme Court basically ignored the mosiac theory adopted by the DC Circuit and applied Scalia's trespass alternative to Katz.

So is Scalia's theory really an alternative to Katz (in which it seems like it would be sort of groundbreaking) or is the idea that trespass more of a "plus factor" (fuck you Antitrust) to the Katz test?

traehekat wrote:

Geist13 wrote:

Teoeo wrote:Don't forget U.S. v. Maynard where the court held that tracking someone with a GPS for a month IS a search because the goings and comings of a person throughout the course of an entire month is not "available to the public".

Maynard is the decision below in Jones. Its not a supreme court case, its a DC Circuit case. In Jones, the Supreme Court basically ignored the mosiac theory adopted by the DC Circuit and applied Scalia's trespass alternative to Katz.

So is Scalia's theory really an alternative to Katz (in which it seems like it would be sort of groundbreaking) or is the idea that trespass more of a "plus factor" (fuck you Antitrust) to the Katz test?

On my reading (and my professor's reading) it is a second, alternative test. The test is laid out in footnote 5. Trespass Test = 1) trespass; 2) of a constitutionally protected space (person, papers, houses, effects); 3) police objective of obtaining information. I don't see any objective reasonableness requirement in Scalia's opinion. If there's no physical trespass, then you still have the Katz test to apply.

Scalia says that it isn't groundbreaking because he says that not a single case would come down differently since the trespass test has always been there.

Geist13 wrote:

Teoeo wrote:Don't forget U.S. v. Maynard where the court held that tracking someone with a GPS for a month IS a search because the goings and comings of a person throughout the course of an entire month is not "available to the public".

Maynard is the decision below in Jones. Its not a supreme court case, its a DC Circuit case. In Jones, the Supreme Court basically ignored the mosiac theory adopted by the DC Circuit and applied Scalia's trespass alternative to Katz.

I didn't even realize that, shows you how much I've been studying for Crim Pro

Geist13 wrote:

traehekat wrote:

Geist13 wrote:

Teoeo wrote:Don't forget U.S. v. Maynard where the court held that tracking someone with a GPS for a month IS a search because the goings and comings of a person throughout the course of an entire month is not "available to the public".

Maynard is the decision below in Jones. Its not a supreme court case, its a DC Circuit case. In Jones, the Supreme Court basically ignored the mosiac theory adopted by the DC Circuit and applied Scalia's trespass alternative to Katz.

So is Scalia's theory really an alternative to Katz (in which it seems like it would be sort of groundbreaking) or is the idea that trespass more of a "plus factor" (fuck you Antitrust) to the Katz test?

On my reading (and my professor's reading) it is a second, alternative test. The test is laid out in footnote 5. Trespass Test = 1) trespass; 2) of a constitutionally protected space (person, papers, houses, effects); 3) police objective of obtaining information. I don't see any objective reasonableness requirement in Scalia's opinion. If there's no physical trespass, then you still have the Katz test to apply.

Scalia says that it isn't groundbreaking because he says that not a single case would come down differently since the trespass test has always been there.

Does he explain how Katz would have come out the same under his test, given that there was (seemingly) no trespass into a constitutionally protected space?

traehekat wrote: Does he explain how Katz would have come out the same under his test, given that there was (seemingly) no trespass into a constitutionally protected space?

He tries to cabin Katz to apply only to electronic communications.

Geist13 wrote:On my reading (and my professor's reading) it is a second, alternative test. The test is laid out in footnote 5. Trespass Test = 1) trespass; 2) of a constitutionally protected space (person, papers, houses, effects); 3) police objective of obtaining information. I don't see any objective reasonableness requirement in Scalia's opinion. If there's no physical trespass, then you still have the Katz test to apply.

Scalia says that it isn't groundbreaking because he says that not a single case would come down differently since the trespass test has always been there.

My prof also reads it as an alternative test. Scalia rescues Oliver on the basis that open fields are not directly listed in the 4th Amdt. So for Scalia, if it isn't a person, a paper, a house, or an "effect", its not protected. So chattels are protected per effects, but not your land (except for the curtilage). Not one of originalism's finer moments, IMHO.

traehekat wrote:Does he explain how Katz would have come out the same under his test, given that there was (seemingly) no trespass into a constitutionally protected space?

no he doesn't address it; says something to the effect of there maybe some use of this technology that doesn't involve a trespass but we aren't faced with that question. There was a trespass in this case; the car is an "effect."

traehekat wrote:Is this distinguished from Knotts where the cops put the beeper in the canister before they gave it to the defendant, and so it wasn't a trespass?

"...there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts’ possession, with the consent of the then-owner. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it."

My prof's take on Jones in relation to Katz is: who knows wtf it is going to do, won't it be fun to see?

sundance95 wrote:

Geist13 wrote:On my reading (and my professor's reading) it is a second, alternative test. The test is laid out in footnote 5. Trespass Test = 1) trespass; 2) of a constitutionally protected space (person, papers, houses, effects); 3) police objective of obtaining information. I don't see any objective reasonableness requirement in Scalia's opinion. If there's no physical trespass, then you still have the Katz test to apply.

Scalia says that it isn't groundbreaking because he says that not a single case would come down differently since the trespass test has always been there.

My prof also reads it as an alternative test. Scalia rescues Oliver on the basis that open fields are not directly listed in the 4th Amdt. So for Scalia, if it isn't a person, a paper, a house, or an "effect", its not protected. So chattels are protected per effects, but not your land (except for the curtilage). Not one of originalism's finer moments, IMHO.

+1.

tricky thing is that mosaic theory is still floating around so who knows what'll happen when Jones is reprised without the trespass. although this supposedly caused a 'sea change' for the FBI.

sundance95 wrote:

Geist13 wrote:On my reading (and my professor's reading) it is a second, alternative test. The test is laid out in footnote 5. Trespass Test = 1) trespass; 2) of a constitutionally protected space (person, papers, houses, effects); 3) police objective of obtaining information. I don't see any objective reasonableness requirement in Scalia's opinion. If there's no physical trespass, then you still have the Katz test to apply.

Scalia says that it isn't groundbreaking because he says that not a single case would come down differently since the trespass test has always been there.

My prof also reads it as an alternative test. Scalia rescues Oliver on the basis that open fields are not directly listed in the 4th Amdt. So for Scalia, if it isn't a person, a paper, a house, or an "effect", its not protected. So chattels are protected per effects, but not your land (except for the curtilage). Not one of originalism's finer moments, IMHO.

Glad this doesn't make any sense to some people either. Walk onto a person's property and search it and it's fine as long as it's far enough away from the house. But tresspass on the bottom of the person's car is a 4th violation? I like Scalia, but he's maddening.

istara wrote:

traehekat wrote:Is this distinguished from Knotts where the cops put the beeper in the canister before they gave it to the defendant, and so it wasn't a trespass?

"...there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts’ possession, with the consent of the then-owner. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it."

My prof's take on Jones in relation to Katz is: who knows wtf it is going to do, won't it be fun to see?

My prof said it's different from Knotts because as noted above, in Knotts the beeper was installed in the canister *with the permission* of the owner, so there was no trespass, it's not the government's problem if Knotts didn't check out his canisters when he took possession of them. He wouldn't have had standing to question the installation, so says my prof, because they weren't his canisters when the beeper was installed. *shrug*

This was my understanding too. So my professor suggested that the police install GPS with the permission of every car manufacturer before the cars are sold and call it good.

istara wrote:This was my understanding too. So my professor suggested that the police install GPS with the permission of every car manufacturer before the cars are sold and call it good.

My prof suggested that since so many cars now come with GPS installed on them (for nav, on star, stolen vehicle location, even if you haven't accessed/used that feature, it's there on many cars) that it will eventually raise the question of whether they need a warrant to remotely access the GPS that's already ON your car. Will it depend on if you've turned on the feature and are transmitting to a third party? (ie, if you've turned on your On Star and transmit your location data to on star so they can tell you where a nearby sushi restaurant is, do you really have an expectation of privacy anymore in your locational information?) who knows. But, my prof was really into the 'well what about THIS!!!' questions.

TB12 wrote:

sundance95 wrote:

Geist13 wrote:On my reading (and my professor's reading) it is a second, alternative test. The test is laid out in footnote 5. Trespass Test = 1) trespass; 2) of a constitutionally protected space (person, papers, houses, effects); 3) police objective of obtaining information. I don't see any objective reasonableness requirement in Scalia's opinion. If there's no physical trespass, then you still have the Katz test to apply.

Scalia says that it isn't groundbreaking because he says that not a single case would come down differently since the trespass test has always been there.

My prof also reads it as an alternative test. Scalia rescues Oliver on the basis that open fields are not directly listed in the 4th Amdt. So for Scalia, if it isn't a person, a paper, a house, or an "effect", its not protected. So chattels are protected per effects, but not your land (except for the curtilage). Not one of originalism's finer moments, IMHO.

Glad this doesn't make any sense to some people either. Walk onto a person's property and search it and it's fine as long as it's far enough away from the house. But tresspass on the bottom of the person's car is a 4th violation? I like Scalia, but he's maddening.

The better way to think about the trespass test is that it makes up the core of Fourth Amendment protection with the Katz test extending protection out beyond it. In other words, a property right in a constitutionally protected area (person, paper, house, effect) is per se reasonable expectation of privacy and the police trespassing within that area is always a search. (Though the trespass test says nothing about whether the search is reasonable or not.)

As for people digging on the constitutionally-enumerated areas distinction, that's what the Court has ALWAYS used to justify open fields, including in Hester (the original open fields case) and Oliver and why the trespass test never applied to open fields.

istara wrote:This was my understanding too. So my professor suggested that the police install GPS with the permission of every car manufacturer before the cars are sold and call it good.

And then consumers decide they prefer the cars without police GPS.

In any event, where there isn't a trespass there's still Katz, and the Court could adopt the mosaic theory.

wired wrote:
As for people digging on the constitutionally-enumerated areas distinction, that's what the Court has ALWAYS used to justify open fields, including in Hester (the original open fields case) and Oliver and why the trespass test never applied to open fields.

Why you mad? Just because the Court has historically used this distinction doesn't mean that it makes any sense in the context of current doctrine. I suspect many would agree that the idea that one has a reasonable expectation of privacy in their chattels and not their land is contrary to common sense. Reliance on the enumerated areas might justify why chattels have a per se reasonable expectation of privacy, but doesn't justify why open fields never have an reasonable expectation.

sundance95 wrote:

wired wrote:
As for people digging on the constitutionally-enumerated areas distinction, that's what the Court has ALWAYS used to justify open fields, including in Hester (the original open fields case) and Oliver and why the trespass test never applied to open fields.

Why you mad? Just because the Court has historically used this distinction doesn't mean that it makes any sense in the context of current doctrine. I suspect many would agree that the idea that one has a reasonable expectation of privacy in their chattels and not their land is contrary to common sense. Reliance on the enumerated areas might justify why chattels have a per se reasonable expectation of privacy, but doesn't justify why open fields never have an reasonable expectation.

I can agree that the open fields doctrine isn't consistent 1960s trend of the Fourth Amendment (i.e. the Katz test), but that's the whole point: Scalia is saying that even under the old, super-formalistic test that Katz augmented, this is clearly a search. He's reference to open fields it to clearly delineate the contours of the lowest Fourth Amendment protection anyone has for asserting a right and a search. In other words, he wants to make sure no one thinks he is creating some new test, he's just clarifying that the core Fourth Amendment protection still exists. So people are confusing the issue by saying, "Well that doesn't make sense for him to say his test is consistent with open fields." He's not creating a test, he's just saying what the test has always been.