§ 6.02 "SEARCH": ORIGINAL "TRESPASS" ANALYSIS

• Jurisdiction: United States

§ 6.02. "Search": Original "Trespass" Analysis

Fourth Amendment "search" analysis is divisible into three historical periods. During the early period, the Court held that government surveillance was a search under the Fourth Amendment if the government action trespassed on the defendant's property interests. This period ended in 1967 when the Supreme Court announced its landmark decision in Katz v. United States.¹⁰ Katz rejected the property-based test and instead focused on whether or not the government action violated the defendant's "reasonable expectation of privacy." That period ended in 2012, when the Supreme Court decided United States v. Jones,¹¹ which revived the "trespass" test of the earlier period and held that surveillance is a search if it violates a defendant's reasonable expectation of privacy or infringes on the defendant's property interests.

The first period began with Boyd v. United States,¹² which laid the seeds for a property-rights interpretation of the Fourth Amendment.¹³ According to Boyd, the "odious" English practice of issuing general warrants¹⁴ was "fresh in the memories" of the drafters of the Fourth Amendment. The Court quoted extensively from the "memorable discussion" and condemnation of general warrants set out in Entick v. Carrington,¹⁵ in which Lord Camden stated that "every invasion of private property, be it ever so minute, is a trespass."

Under Boyd, the Fourth Amendment did not apply in the absence of a physical intrusion—a trespass—by government agents into a "constitutionally protected area,"¹⁶ in order to "find something or to obtain information."¹⁷

Olmstead v. United States¹⁸ provides the most famous example of the Court's pre-Katz property rights/trespass approach to the Fourth Amendment. In Olmstead, federal officers, without obtaining a search warrant, used wiretaps to intercept the conversations of O and others, conducted by telephone from their homes and offices. The Court ruled that this conduct fell outside the reach of the Fourth Amendment.

The explanatory portion of the opinion was brief and unrevealing. The reasoning, however, came down to this: because they are intangible, conversations are not "persons, house, papers, or effects," so they are unprotected;¹⁹ the houses and offices from which the conversations arose are protected by the Fourth Amendment, but only from physical intrusions or trespasses; eyes and ears cannot "search" or "seize," since neither can trespass; and, the wiretaps used to...