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discovery justified further investigation into the Richmond did not have a reasonable basis to
trafficking up until when she consented to a full believe that the tire would not be touched.
search.
But a precedent binds us only as far as it goes.
The government does not dispute Richmond’s Richmond contends that Muniz-Melcher did not
premise that an unlawful search of the tire would decide whether tapping part of a vehicle was a
have tainted the investigation that followed, search under a trespass theory because, as the
including her consent. opinion recognized, at that time a physical
intrusion did not on its own constitute a search.
So the tap of the tire is the focus of this appeal.
Richmond contends that it was a search within We agree. Katz held that “[t]he premise that
the meaning of the Fourth Amendment. That is property interests control the right of the
the case, she says, because touching the tire was Government to search and seize has been
a trespass which counts as a search under recent discredited.” In the decades that followed, a
Supreme Court cases. trespass did not automatically amount to a search.
(“[A]n actual trespass is neither necessary nor
The government counters that we have previously sufficient to establish a constitutional violation.”)
held that similar law enforcement conduct is not A narcotics agent searching for marijuana in the
a search. In United States v. Muniz-Melchor, a open fields of a farm was not a search even
border patrol agent used a pocket knife to tap the though it was a trespass). But in 2012, United
side of a propane tank mounted in the bed of a States v. Jones revived the property approach that
pickup. We acknowledged that the tapping “may most, including our court, thought Katz had
have constituted a technical trespass, ”but jettisoned. In explaining why a search occurred
explained that Katz v. United States had “rejected when law enforcement placed a GPS tracking
the notion that what constitutes a trespass under device on the undercarriage of a car, the Court
various property laws necessarily constitutes a relied on “the common-law trespassory test,”
search under the Fourth Amendment.” Instead, which it treated as a separate basis for finding a
the then-prevailing Katz test—which came not search alongside the Katz “reasonable
from the majority opinion but from Justice expectation of privacy” test.
Harlan’s concurrence—asked whether the person
challenging a search had a reasonable Lower courts recognized Jones as a sea change.
expectation of privacy in the item being (explaining that that there is now “reason to
examined. wonder” about the vitality of a 1984 Supreme
The answer was “no” for the owner of the tapped Court decision after “Jones held that the Katz
propane tank because he “surely . . . must have formula is but one way to determine if a . . .
reasonably expected that someone, such as a ‘search’ has taken place”); (“In recent years, the
gasoline station attendant, might lean against the Supreme Court has revived a ‘property-based
tank or touch it in some manner.” approach’ to identify unconstitutional
searches.”); (explaining that “Jones
That expectation of contact is even greater for a fundamentally altered [the] legal landscape by
vehicle’s tire as it is routinely checked for air reviving—after a forty-five year hibernation—
pressure. So Muniz-Melcher binds us on the the Supreme Court’s trespass theory”). The most
“reasonable expectation of privacy” question. colorful description of Jones’s revival of the
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