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trespass approach was the comment that “[i]t approach because it “largely disregards what is
turns out that approach was not dead, just taking really important (the use of a GPS for the purpose
a really long nap.” of long-term tracking) and instead attaches great
significance to something that most would view
Jones thus requires us to consider the trespass as relatively minor (attaching to the bottom of a
test that Muniz-Melchor did not think was car a small, light object that does not interfere in
sufficient to establish a search but now is. Even any way with the car’s operation).” The also
under Jones, however, a trespass does not get a “relatively minor” act of tapping tires is thus a
defendant all the way to characterizing police trespass. Because that trespass occurred to learn
conduct as a search. Consistent with the meaning what was inside the tires, it qualifies as a search.
of “search,” a trespass “must be conjoined” with This trespass analysis might seem simplistic. But
“an attempt to find something or obtain proponents of the property-based approach view
information.” This prevents a mere physical its bright line as a virtue over the less predictable
touching, such as when an officer leans on the expectation-of-privacy inquiry. (ed. Note: the
door of a car while questioning its driver, from trend of the Courts seems to be protection of both
being a search. Gonzales’s tapping of the tire was a trespass-type intrusion and of electronic
not that type of incidental conduct. He touched privacy interests [such as stored data, facebook
the tire in order to help find out what was inside. page contents, etc.]) It may also seem troubling
That satisfies the second Jones requirement. that the brief touching of a tire reveals far less
information than other lawful conduct, like a dog
So whether the touching was a search comes sniff, that is not considered a search. That
down to whether it was a trespass. Muniz- critique, however, views the search question
Melchor thought tapping a tank “may have through the invasion-of-privacy mindset. Rightly
constituted a technical trespass,” but did not or wrongly, Jones held that a trespassory search
decide if that was the case. Its “technical” implicates the Fourth Amendment even if it does
qualifier may have come from the absence of not offend privacy interests. Under that property-
damage to the tank, which modern tort law based approach, Gonzales’s tapping of the tire
requires for trespass to chattel. But in concluding was a search regardless of how insignificant it
that attaching a GPS to the exterior of a vehicle might seem.
was a trespass, Jones relied on its reading of the
common law of trespass as it existed in 1791 Although the limited nature of the intrusion does
when the Fourth Amendment was ratified. not affect whether the physical examination of
the tire is deemed a search, (emphasis by ed.) that
In terms of the physical intrusion, we see no is only the preliminary Fourth Amendment
difference. Nor, apparently, does the government question. The ultimate question is whether the
as it does not dispute that the tire tap was a government’s conduct was reasonable. And in
trespass. Of course, the GPS device remained that analysis the extent of the intrusion on an
attached for a longer period and gathered a lot individual’s Fourth Amendment interests is
more information compared to a tire tap, but relevant.
Jones found a trespass because of the physical
contact the device made with the car at the The government first argues that a search of the
moment it was affixed. Indeed, Justice Alito’s tire complied with the Fourth Amendment
opinion in Jones critiques the majority’s trespass because Gonzales had probable cause to believe
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