Laurent Sacharoff, ‘Constitutional Trespass’

The Supreme Court has recently created a trespass test for Fourth Amendment searches without explaining what type of trespass it envisions — one based on the common law of 1791, on the trespass law of the state where the search occurred, or on more general trespass principles. Indeed its most recent case raises the question whether the Court has created a trespass test at all, a turnabout that largely recapitulates the Court’s 125-year history of confusion in which it has embraced, rejected, or simply ignored trespass as a test from era to era or even year to year.

This article proposes a trespass test, as a supplement to a privacy test, that will settle this recent and historical uncertainty. In particular, the Court should create a federal common law of trespass rooted in general but contemporary trespass principles, thus avoiding the drawbacks of reliance on trespass law from 1791 or individual states. The Court should modify this federal common law of trespass to conform to Fourth Amendment principles. For example, not any trespass, such as one to open fields, will suffice — the trespass must be upon an area enumerated in the Fourth Amendment such as houses.

This proposed federal common law of trespass arises out of the Fourth Amendment and can therefore be thought of as constitutional trespass. “Constitutional trespass” comes by way of analogy to constitutional torts under Section 1983, where the Court relies upon general tort principles to fashion constitutional remedies. This uniform approach — a single federal common law of trespass — avoids the fractured Fourth Amendment that would result from reliance on individual state law, while retaining the advantages of a trespass doctrine that reflects contemporary relations between the people and law enforcement, relations so different from those of the founding era.

Sacharoff, Laurent, Constitutional Trespass (August 16, 2013).

First posted 2013-08-19 07:04:44

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