CA9: SCOTUS has never adopted trespass as a sole ground for a Fourth Amendment violation

Entry into the public areas of a motel where low income persons lived to look for code violations did not violate the Fourth Amendment. There was no reasonable expectation of privacy in those places, and the court declines to adopt a trespass theory for that as an alternative. Patel v. City of Montclair, 2015 U.S. App. LEXIS 14468 (9th Cir. August 18, 2015):

Indeed, Patel has never asserted that the Galleria Motel is within one of the enumerated areas of the Fourth Amendment. He argues instead for a technical trespass rule that the Supreme Court has never adopted. See Orin Kerr, The Curious History of Fourth Amendment Searches, 2012 Sup. Ct. Rev. 67, 77 (2012) (“The Supreme Court never tied the definition of a ‘search’ to trespass law.”). The plain language of Jones refutes Patel’s contention: “The Government’s physical intrusion on [a privately owned but unenumerated] area—unlike its intrusion on the ‘effect’ at issue here—is of no Fourth Amendment significance.” Jones, 132 S. Ct. at 953; see United States v. Mathias, 721 F.3d 952, 956 (8th Cir. 2013) (“A Jones trespassory search … requires the challenged intrusion to be into a constitutionally protected area enumerated within the text of the Fourth Amendment.”). Accordingly, the district court did not err when it held that the police officers’ entry onto the areas of the Galleria Motel open to the public did not constitute a search within the meaning of the Fourth Amendment.

Patel makes a second, but related, argument to support his claim. Patel contends that the Supreme Court’s decisions in Camara v. Municipal Court of City and County of San Francicso, 387 U.S. 523 (1967), and See v. City of Seattle, 387 U.S. 541 (1967), when read in conjunction with Jones, extend the reach of the Fourth Amendment to protect against any police intrusion into private commercial property. Camara and See were both decided approximately six months before the Supreme Court decided Katz. Therefore, they predate the Supreme Court’s efforts to standardize the Fourth Amendment inquiry with the reasonable expectation of privacy test. However, Camara and See are best understood as earlier iterations of the Katz reasonable expectation of privacy test; they do not add or detract from the scope of Fourth Amendment protections as announced in Jones.