The Washington University Law Review has just published my new article, "The Two Tests of Search Law: What Is the Jones Test, and What Does That Say About Katz?" Here's the abstract:

Fourth Amendment law has two "search" tests: The Katz privacy test and the Jones property test. Lower courts are not sure what the difference is between them, however, or whether the Jones test is based on trespass law or the mechanics of physical intrusion. The result is a remarkable conceptual uncertainty in Fourth Amendment law. Every lower court recites that there are two search tests, but no one knows what one test means or how it relates to the other.

This Article argues that the Jones test hinges on physical intrusion, not trespass law. Jones claimed to restore a pre-Katz search test, and a close look

See Full Page