United States v. Jones: Big Brother and the "Common Good" versus the Fourth Amendment and Your Right to Privacy

This Article traces the evolution of Fourth Amendment law and what constitutes a “search” from English property law and trespass to the reasonable expectation of privacy under United States v. Katz to the latest Supreme Court decision in United States v. Jones. The Supreme Court’s recent reliance upon historical property law in Jones impacts law enforcement’s ability to use tracking devices, especially when exigent circumstances exist. The Jones decision may also subsequently impact law enforcement’s use of other investigatory tools, such as trash pulls, stationary cameras, open fields, and undercover agent or informant non-consensual recordings. The decision in Jones brings trespass back into the criminal context in a way that is similar to private trespassing claims against private investigators. What remains unclear is how the Court will react to other investigatory tools commonly used without a warrant and whether civil trespass and privacy causes of action will inform this dialogue. This Article argues that law enforcement and private entities such as private investigators should both be bound by the same constraints and legal limitations when it comes to their ability to utilize technical investigative techniques or third party data. Thus, civil law, which limits the actions of the private investigator, is examined to determine how it differs from criminal law which applies to government.