Fourth Amendment Applicability—From Trespass To Reasonable Expectation of Privacy (Rep)

• Jurisdiction: Maryland

III. Fourth Amendment applicability—from trespass to reasonable expectation of privacy (REP)

A. From Olmstead to Katz: from physical trespass to reasonable expectation of privacy

The Fourth Amendment applies to persons, houses, papers, and effects. In Olmstead v. United States, 277 U.S. 438 (1928), the Supreme Court adopted a physical trespass theory to determine whether the Fourth Amendment prohibition against unreasonable searches and seizures had been violated. In that case, the Court held that wire-tapping did not violate the Fourth Amendment because, "[t]here was no searching. There was no seizure. The evidence was secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants." Id. at 464.

Four decades later, in Katz v. United States, 389 U.S. 347, 350-51 (1967), the Supreme Court considered the Fourth Amendment's application to the new technology of eavesdropping. In Katz, there was no Fourth Amendment violation under the physical trespass theory, yet the Court recognized "that the reach of that Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure." Id. at 353. The government's eavesdropping "violated the privacy upon which [the defendant] justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." Id. The lack of physical penetration into the phone booth had "no constitutional significance." Id.

Justice Harlan, in a concurring opinion, articulated a two-part test for determining whether a person is entitled to the Fourth Amendment protection: "first that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'" Id. at 361 (Harlan, J., concurring). Following Katz, this so-called "reasonable expectation of privacy" test became the controlling standard for determining the Fourth Amendment's reach. See, e.g., Bond v. United States, 529 U.S. 334, 337 (2000); California v. Ciraolo, 476 U.S. 207, 211 (1986); Smith v. Maryland, 442 U.S. 735, 740 (1979).

B. Under Jones, both Olmstead and Katz are good law

Although Katz was widely viewed as having replaced the trespass-based rule with the reasonable expectation of privacy test, in United States v. Jones, 565 U.S. 400 (2012), the Supreme Court said otherwise. The case required the Court to decide whether the attachment of a GPS device to a vehicle to monitor its movements on public...