The Resurrection of the “Trespass” Element of Fourth Amendment Law

Recently, in United States v. Jones, the Supreme Court ruled that the attaching of a GPS tracking device to a suspect’s car without his knowledge and monitoring of the vehicle’s movements violated the suspect’s Fourth Amendment rights against unreasonable search and seizure.  See generally 132 S.Ct. 945 (2012).  In so doing, the Court resurrected an idea relating to Fourth Amendment law that had been dormant for almost 50 years – the idea of common-law trespass as a test for violations of the amendment.

Specifically, police officers obtained a warrant to put the tracking device on a car registered to Jones’ wife.  Jones, 132 S.Ct. at 948.  Officers then placed the GPS tracker on the undercarriage of the car while it was parked in a public parking lot.  Id.  The officers then monitored the car’s movements for 28 days.  Id.  Eventually, the Government indicted Jones on charges of (among other things) conspiracy to distribute and possess with intent to distribute cocaine.  Id.  Jones moved to suppress the evidence from the GPS device.  

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Judge Sutton’s Hallows Lecture

Hallows LectureMarquette University Law School is fortunate to welcome this week the Hon. Jeffrey S. Sutton of the U.S. Court of Appeals for the Sixth Circuit. Judge Sutton will deliver our annual Hallows Lecture on Tuesday, February 28, at 4:30 p.m. in the Appellate Courtroom of Eckstein Hall. His lecture, titled “Barnette, the Roosevelt Appointees, and the Progressive Embrace of Judicial Review,” focuses on Board of Education v. Barnette, the U.S. Supreme Court’s 1943 decision holding that the First Amendment protected students unwilling on religious grounds to salute the American flag. The 6-3 decision overturned Minersville School District v. Gobitis, a 7-2 decision only three years earlier. Appointees of Franklin D. Roosevelt were central in this drama: Robert H. Jackson wrote for the Court in Barnette, over the dissent of Felix Frankfurter, who had authored Gobitis but found himself abandoned by William O. Douglas and Hugo L. Black. Judge Sutton will discuss how this reversal of course happened so quickly and why it marked a turning point away from the progressive opposition to many forms of judicial review. The lecture is free and open to the public (registration is required) and will bear 1.0 CLE. The Hallows Lecture—perpetuating the memory of the late E. Harold Hallows, Chief Justice of the Wisconsin Supreme Court and longtime Professor of Law at Marquette University—is one of the Law School’s flagship events, precisely because we have been the beneficiary of contributions from such distinguished jurists as Judge Sutton.

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