Orin Kerr writes:
In United States v. Jones, 132 S.Ct. 945 (2012), the Supreme Court announced that the Katz reasonable-expectation-of-privacy test is not the only test for what is a Fourth Amendment search. According to Jones, Katz supplemented but did not replace the trespass test that the Court indicated had existed beforeJones. According to Jones, “[t]respass . . conjoined with . . . an attempt to find something or to obtain information” constitutes a search.
In a forthcoming article that I updated today on SSRN to the near-final version, The Curious History of Fourth Amendment Searches, I looked closely at the history of the Fourth Amendment search doctrine and concluded that no trespass test existed before Katz.
Read more on The Volokh Conspiracy.
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