Anthony Bandiero, Attorney and Senior Legal Instructor, Blue to Gold Law Enforcement Training

A roadside chat on a deep question from an officer in Kern County, California. Jacobsen was decided under the Katz privacy test. Jones revived the trespass test. So if a private party has already opened a package and the police then replicate that search, is the replication still not a search, even though strictly speaking the police are trespassing on the package?

Is Jacobsen still good law after Jones?

This question comes from an officer in Kern County, California. This officer asked very, very interesting questions, very deep questions, and I just had to tell you that I respect it. So here’s another question he has.

Since the Jacobsen decision was made under a Katz analysis, I’m going to explain all this, would the circumstances of the case be unconstitutional after Jones, reviving the trespass search? I’m having trouble understanding how this cat out of the bag analysis is still legit after Jones found that trespass is also a search.

Okay, so let’s kind of break this down. A lot of you are like, what the hell is this guy talking about? Well, I know what he’s talking about. Let’s break this down and do some fundamentals, and then I’m going to answer your question.

What is the Katz reasonable expectation of privacy test?

The first thing is, let’s talk about what Katz is. Katz is a U.S. Supreme Court case from 1967 that essentially said, if a person exhibits a reasonable expectation of privacy in the area or item searched, then they have a Fourth Amendment protection in that thing searched.

So what happened in Katz was that the FBI put a tape recorder on top of a phone booth while Charles Katz was in the phone booth making a telephone call. He was engaged in interstate gambling. This recording device picked up his side of the conversation, and based on this one-sided conversation, they were able to kind of put the pieces together that he was engaged in illegal gambling.

Now they go to the Supreme Court. Katz is like, this is a Fourth Amendment search. The FBI is like, no, it’s not. We did not enter the phone booth. Privacy was not even the word of the day, but you don’t have any protection in this phone booth. It’s not your phone booth. Plus, we didn’t enter it.

But the Supreme Court starts saying, you know what, it’s not just trespass that is an issue here. It’s the privacy interest. And the Supreme Court starts using the word privacy in connection with Fourth Amendment searches. The word privacy does not exist anywhere in the Constitution. And so people like Antonin Scalia, RIP, had problems with this. He wasn’t on the Supreme Court in 1967, but he was basically saying, guys, you are making this all up. There is no right of privacy in the Constitution. But regardless, the Supreme Court at the time said there was.

How does the two-part Katz test work?

They came up with a two-part test. First, did the person exhibit a subjective expectation of privacy? In other words, did he or she do those things that they needed to do to keep their stuff private? If you were going to put a marijuana plant on your windowsill, don’t complain when the cops see it. Now, if marijuana is not illegal, let’s change it to a brick of cocaine. Don’t complain when the cops see it. That’s the first thing.

Okay, fine. Now you actually have the marijuana plant behind Venetian blinds, and the Venetian blinds are closed. The next thing is, did the cops do something that would have exceeded society’s expectation of privacy? In other words, objectively, did this violate privacy? So if the officer went up to some blinds and they were closed, and he went up to the little string hole and saw the marijuana plant in plain view, that is likely going to violate a reasonable expectation of privacy.

Number one, did the person put the marijuana plant behind blinds that were closed? Yes. Did the officer do something that is objectively kind of offensive to privacy? Yes. I think we can agree that if you saw a government agent looking into your window like this, you’d be like, man, why are you doing that? Looks like a peeping Tom. Does not look like it’s plain view.

What did the Supreme Court hold in Jacobsen?

Now let’s fast forward to Jacobsen. Jacobsen is a 1984 case. What happened here was that Jacobsen had a FedEx parcel that was searched by FedEx. Now, we don’t care about private searches under the Fourth Amendment. They searched it because, I guess, through their negligence they damaged the package. When they opened it up, they found cocaine in a cardboard tube. They then put it all back together. They called their friends at the DEA. The DEA arrived, and after they’re told what was in the package, they opened it and they saw the cocaine for themselves. Then they did a controlled delivery, I think, and the rest is history.

The U.S. Supreme Court said that no search occurred at all. Why? Because when FedEx opened the package and they saw the cocaine, their private search eviscerated, eliminated, any privacy interest that Jacobsen had in the searched places. Now, if there were things in the package that were unsearched, let’s say there were two boxes in the FedEx package, one was searched and one was not, Jacobsen would not lose his privacy interest in the unsearched box. But he would in the one that was searched. So no privacy interest in the searched box. So when the DEA opened up the box and they saw the same thing that FedEx did, that replication of what FedEx did did not invade a reasonable expectation of privacy.

What did Jones add with the trespass test?

Let’s fast forward to Jones. Jones is a seminal case that basically holds that not only is there a privacy search, not only can you implicate the Fourth Amendment by invading somebody’s reasonable expectation of privacy, Katz, but you can also implicate the Fourth Amendment by trespassing with the intent to gather information.

What happened in Jones was that the FBI, see how it’s always the FBI? You guys can give me a call, I want to teach you. The FBI put a GPS tracker on Jones’s vehicle without a warrant, and they tracked him for about 30 days. Based on his tracking information and some other things, they got a warrant for his stash house, and they found over, like, 100 kilos of cocaine, a million dollars in cash, and so forth.

Just as a little side note, I interviewed Antoine Jones, the Jones in United States v. Jones, and I have over a two-hour interview on the Blue to Gold channel on YouTube. You’ve got to check it out. We go deep into his case, his whole life, what happened, and so forth. It actually is a very fascinating story.

So Jones held, not only privacy, but also trespass.

Does the police replication of a private search count as a trespass search after Jones?

So what this officer is asking is, hey, look, okay, I know the Supreme Court is still saying that no search occurred in Jacobsen because there was no privacy interest left. But aren’t you still trespassing? Yes. Strictly speaking, you are trespassing onto something that Jacobsen has standing to contest.

The problem is, and by the way, this is a million-dollar question, because I’ve had this question myself. However, the cases that talk about trespass still require some level of privacy. If you have just no privacy, if there’s nothing to hide, if the information has already been exposed, then there’s no information to seek. In other words, trespass is intermeddling with the intent to seek information.

I believe that if courts were to address a Jacobsen-style search today, they would still find that you would still need some kind of privacy, something kind of hidden, in order to still have a search. In other words, yeah, you may have a trespass, but you don’t have the seek information part, because what you’re seeking is already known. And that’s some of these cases that have been coming out now.

Would a defense attorney argue Jacobsen is dead after Jones?

Again, I still think it’s a very legit question. If I was a defense attorney, I would definitely argue that Jacobsen is no longer good law after Jones. I just don’t see the courts doing that. Because if you get rid of Jacobsen, a lot of case law falls apart. A lot of cases just fall apart, because cops do this type of search a lot.

So regardless, though, you still have to have some kind of private information in order to have a search under the Fourth Amendment. That’s what I think is happening, in a nutshell, in layman’s terms. I’m sure that somebody a lot smarter than me can write a journal article on really the implications here. By the way, there have been some journal articles, not on this exact issue, not Jacobsen, but just on how Jones still requires something more than just touching something. You still need that privacy interest. And so Katz is still somehow intermeddled with trespass, which makes things a tad confusing. Which, again, that’s why I appreciate the question.

But at the end of the day, I think we’re still good, and we still teach that at Blue to Gold. We don’t teach that this doctrine is dead after Jones.

The short version

  • Katz, 1967: if a person exhibits a reasonable expectation of privacy in the area or item searched, they have Fourth Amendment protection in it. Two parts, subjective and objective.
  • Jacobsen, 1984: when FedEx opened the package and saw the cocaine, that private search eliminated any privacy interest in the searched places. The DEA replicating it was no search at all.
  • Jones: you can also implicate the Fourth Amendment by trespassing with the intent to gather information.
  • Strictly speaking, replicating a private search is a trespass. But the trespass cases still require some level of privacy. If the information has already been exposed, there’s no information to seek.
  • If I was a defense attorney, I would definitely argue Jacobsen is no longer good law after Jones. I just don’t see the courts doing that. We still teach it at Blue to Gold.

Until next time, my friends, you stay safe.

Related from Blue to Gold

This article is a lightly edited transcript of a Blue to Gold roadside chat and is for training purposes only. It is not legal advice. Check your own state law and your prosecutor before acting. Source video: EP#808