Wednesday, March 27, 2013
Orin Kerr has this thoughtful post, noting Justice Scalia's shift from referring to "trespass" in Jones to different formulations in Jardines. In part:
One way to square them is that perhaps the Jones test is not about the technicalities of trespass doctrine but rather about physical intrusion into property. Under this reading, theJones inquiry protects private property from physical intrusion. What counts as a “physical intrusion”? Most cases will be easy — just watch the officer or tools he is using as they cross into the constitutionally protected area of the house, paper, person, or effect. The facts ofJones then become the closer case, with a “physical mount[ing]” of the government’s device to the car deemed a sufficient interference with the property interest to “intrude” onto the effect of the car. The issue isn’t the technicalities of trespass law, but rather the presence of physical intrusion into property owned by the person — specifically, their houses, persons, papers, and effects.