Wednesday, September 4, 2013
Orin Kerr has this post at The Volokh Conspiracy, commenting on a recent lower court case:
[W]hether No Trespassing signs might revoke the implied license raises a difficult issue about the nature of Jardines: Is the scope of the “license” a question of law or is it a question of fact? Put another way, is the scope of the license something that the Court answer for all based on its understanding of social norms, or is it a question of fact that is addressed on a case-by-case basis like issues of consent in Fourth Amendment law? And just as a matter of doctrine, is the absence of a license an element of what is a Fourth Amendment search under the trespass/physical intrusion test (thus making the test for a Jones/Jardines search whether there is an unlicensed physical intrusion or trespass on to a protected area with intent to obtain information) or is the question of license just another way to talk about consent, and thus the reasonableness of a search rather than whether a search occurred? Different parts of the opinion hint at different answers, I think.
It’s somewhat easier to reach the result that No Trespassing signs don’t matter if you see the license as an issue of law; you just announce that the license does not consider such signs. You can also get there if you see the license as an issue of fact, although it may begin to depend on the details of where the signs were placed and what they said. For example, perhaps a generic “no trespassing” doesn’t necessarily apply to the police, while a “no police permitted on the premises under any circumstances” would. It could depend on the facts of each case. Either way, I would think that the broader question hinges on the nature of the implied license test articulated in Jardines rather than anything found in Katz.