The Improbable Resurrection of the Fourth Amendment?

Erica Goldberg How United States v. Jones Can Restore Our Faith in the Fourth Amendment First Impressions (June 2012) (highlighting article to appear in 110 Mich. L. Rev. N. 8):

United States v. Jones,[1] [132 S. Ct. 945 (2012) (No. 10-1259)] issued in January of this year, is a landmark case that has the potential to restore a property-based interpretation of the Fourth Amendment to prominence. In 1967, the Supreme Court abandoned its previous Fourth Amendment framework, which had viewed the prohibition on unreasonable searches in light of property and trespass laws, and replaced it with a rule protecting the public's reasonable expectations of privacy.[2] Although the Court may have intended this reasonable expectations test to provide more protection than a test rooted in property law, the new test in fact made the Justices' subjective views about privacy paramount, resulted in circular logic, and over time diminished Fourth Amendment protection. Jones, which held that attaching a GPS device to a suspect's car without a proper warrant violates the Fourth Amendment because attachment of the device constitutes a physical intrusion upon the car,[3] reinvigorates the pre-1967 property-based framework. The case indicates that a governmental intrusion is a search if it violates a reasonable expectation of privacy or constitutes a physical intrusion of property. Jones is itself rather limited in scope, but it could provide the foundation for a paradigm shift in the interpretation of the Fourth Amendment.

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