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The Use of Trespass in U.S. v. Jones

by Todd Bowen

This post is part of the student blogger project from the summer session of Space Security Law.

Todd Bowen is a 3L from Southaven, MS. He is pursuing a certificate from the National Center for Remote Sensing, Air and Space Law.

As discussed in my previous blog post, Justice Scalia uses an originalist method of interpreting the Fourth Amendment. In doing so, he turns to the 1765 English case of Entick v. Carrington for guidance. This case arose from events that occurred in November of 1762. John Entick sued Nathan Carrington, James Watson, Thomas Ardran and Robert Blackmore (messengers of the King) for trespass. A warrant was issued for Entick as one of the suspected authors of a set of weekly papers titled “The Monitor, or British Freeholder.” These papers contained “gross and scandalous reflections and invectives upon His Majesty’s Government, and upon both Houses of Parliament. The four messengers were given orders, “to make strict and diligent search for the plaintiff…to seize and apprehend and bring together with his books and papers in safe custody, before Early of Halifax.” In carrying out these orders, the men broke into Entick’s house and remained there for four hours while searching rooms, breaking open boxes, and reading private papers.1

Lord Camden ruled, “The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.” Camden further states that, should someone enter another person’s property without permission, that person “is liable to an action, though the damage be nothing.” However, even with the permission of a public law, Camden suggests the search and seizure must remain reasonable. For example, the messengers “did not take with them a constable” and “did not bring the papers to the earl of Halifax to be examined.”2

The Supreme Court describes the outcome of the Entick case as being “welcomed and applauded by the lovers of liberty in the colonies as well as in the mother country. It is regarded as one of the permanent monuments of the British constitution.”3 This leaves no doubt that the ruling was on the minds of the drafters of the Fourth Amendment. The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This is nearly a point-by-point copy of Lord Camden’s ruling.

As with Entick, the case of U.S. v. Jones involves a trespass (placing a GPS tracker onto the underside of a vehicle) with the intent to uncover information. Rather than decide on the reasonableness of the information collection, Justice Scalia bases his decision on the simple fact of trespass. It seems this is the safest choice that changes the least amount of Fourth Amendment precedent. However, as the concurring opinions point out, changing technology will make an Entick comparison harder, forcing a decision based on the reasonableness of the search rather than trespass. This may not have been the right case to expand the protections of the Fourth Amendment, but the concurring justices hint that it is only a matter of time.
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1 Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765). See http://www.constitution.org/trials/entick/entick_v_carrington.htm
2 Id.
3 Boyd v. U.S., 116 U.S. 616, 626, 6 S.Ct. 524, 530 (U.S. 1886)

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