by Laurent Sacharoff
The Supreme Court has recently created a trespass test for Fourth Amendment searches without explaining what type of trespass it envisions—one based on the common law of 1791, on the specific trespass law of the state where the search occurred, or on some other trespass principles. Indeed Florida v. Jardines, decided in 2013, raises the question whether the Court has created a trespass test at all, a seeming turnabout that largely recapitulates the Court’s 125-year history of confusion in which it has embraced, rejected, or simply ignored trespass as a test from era to era or even year to year.
To settle this recent and historical uncertainty, this article proposes and defends a trespass test, as an alternative to a privacy test, in determining whether law enforcement has conducted a “search.” Trespass, as Justice Scalia has written, creates a constitutional minimum protection that the Fourth Amendment’s traditional privacy test—vague and easily manipulated—fails to supply. Trespass as a test enjoys support from the text and history of the Fourth Amendment. From a practical standpoint, a trespass test will provide more protection within its realm for the core Fourth Amendment value of privacy than the privacy test itself.
More important, this article proposes for the first time a method for courts to ascertain the appropriate trespass rule. In particular, drawing on the Court’s Section 1983 jurisprudence for constitutional torts, this article urges courts to adopt a two-step process in developing a test for searches under the Fourth Amendment. First, courts should determine the contemporary majority trespass rule from the states. Second, they should ensure this rule conforms to the text and purposes of the Fourth Amendment. This method avoids the drawbacks of reliance on trespass law from 1791, or the fractured Fourth Amendment that would arise from each individual state supplying its own trespass rule.
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