CA5: Tapping a vehicle tire was a trespass but with RS and was reasonable on the totality

The tapping of a suspicious looking tire on a truck was a trespass under Jones and other cases, but the court finds it was with reasonable suspicion and reasonable on the totality. The tapping of the tire revealed that it was solid inside and a search at a garage revealed drugs in the tire. United States v. Richmond, 2019 U.S. App. LEXIS 3974 (5th Cir. Feb. 8, 2019). An interesting and valuable read for the future of trespass to property and the Fourth Amendment:

The government counters that we have previously held that similar law enforcement conduct is not a search. In United States v. Muniz-Melchor, 894 F.2d 1430 (5th Cir. 1990), a border patrol agent used a pocket knife to tap the side of a propane tank mounted in the bed of a pickup. Id. at 1432. We acknowledged that the tapping “may have constituted a technical trespass,” id. at 1435, but explained that Katz v. United States, 389 U.S. 347 (1967), had “rejected the notion that what constitutes a trespass under various property laws necessarily constitutes a search under the Fourth Amendment.” 894 F.2d at 1434. Instead, the then-prevailing Katz test—which came not from the majority opinion but from Justice Harlan’s concurrence—asked whether the person challenging a search had a reasonable expectation of privacy in the item being examined. Id. (quoting Katz, 389 U.S. at 360-61 (Harlan, J., concurring)). The answer was “no” for the owner of the tapped propane tank because he “surely … must have reasonably expected that someone, such as a gasoline station attendant, might lean against the tank or touch it in some manner.” Id at 1435.

That expectation of contact is even greater for a vehicle’s tire as it is routinely checked for air pressure. So Muniz-Melcher binds us on the “reasonable expectation of privacy” question. Richmond did not have a reasonable basis to believe that the tire would not be touched.

But a precedent binds us only as far as it goes. See Brecht v. Abrahmson, 507 U.S. 619, 631 (1993) (explaining that an opinion is not binding on a question it “never squarely addressed”). Richmond contends that Muniz-Melcher did not decide whether tapping part of a vehicle was a search under a trespass theory because, as the opinion recognized, at that time a physical intrusion did not on its own constitute a search.

We agree. Katz held that “[t]he premise that property interests control the right of the Government to search and seize has been discredited.” 389 U.S. at 353 (quoting Warden v. Hayden, 387 U.S. 294, 304 (1967)). In the decades that followed, a trespass did not automatically amount to a search. See United States v. Karo, 468 U.S. 705, 713 (1984) (“[A]n actual trespass is neither necessary nor sufficient to establish a constitutional violation.”); Oliver v. United States, 466 U.S. 170, 183-84 (1984) (holding that narcotics agent searching for marijuana in the open fields of a farm was not a search even though it was a trespass). But in 2012, United States v. Jones revived the property approach that most, including our court, thought Katz had jettisoned. 565 U.S. at 400. In explaining why a search occurred when law enforcement placed a GPS tracking device on the undercarriage of a car, the Court relied on “the common-law trespassory test,” which it treated as a separate basis for finding a search alongside the Katz “reasonable expectation of privacy” test. 565 U.S. at 409.

Lower courts recognized Jones as a sea change. See, e.g., United States v. Ackerman, 831 F.3d 1292, 1307 (10th Cir. 2016) (Gorsuch, J.) (explaining that that there is now “reason to wonder” about the vitality of a 1984 Supreme Court decision after “Jones held that the Katz formula is but one way to determine if a … ‘search’ has taken place”); United States v. Sweeney, 821 F.3d 893, 899 (7th Cir. 2016) (“In recent years, the Supreme Court has revived a ‘property-based approach’ to identify unconstitutional searches.”); United States v. Katzin, 769 F.3d 163, 181 (3d Cir. 2014) (en banc) (explaining that “Jones fundamentally altered [the] legal landscape by reviving—after a forty-five year hibernation—the Supreme Court’s trespass theory”). So did Fourth Amendment scholars. The leading treatise on searches had to add a new chapter to its section on “Protected Areas and Interests.” The title of the addition? “Trespass as an alternate theory.” Compare Wayne R. LaFave et al., 1 Search & Seizure: A Treatise On The Fourth Amendment § 2.1(e) (5th ed. 2012) (explaining that although Katz “seemed to sound the death knell for the pre-Katz ‘trespass’ approach,” the “doctrine re-emerged as an alternate theory to the Katz expectation-of-privacy test”), with id. § 2.1 (4th ed. 2004) (no subsection on trespass). The most colorful description of Jones’s revival of the trespass approach was the comment that “[i]t turns out that approach was not dead, just taking a really long nap.” John P. Elwood & Eric A. White, What Were They Thinking: The Supreme Court in Revue, October Term 2011, 15 Green Bag 2d 405, 409 (2012).

Jones thus requires us to consider the trespass test that Muniz-Melchor did not think was sufficient to establish a search but now is. Even under Jones, however, a trespass does not get a defendant all the way to characterizing police conduct as a search. Jones, 565 U.S. at 408 n.5.

Consistent with the meaning of “search,” a trespass “must be conjoined” with “an attempt to find something or obtain information.” Id.; see also id. at 404 (describing the government’s conduct as “physically occup[ying] private property for the purpose of obtaining information”). This prevents a mere physical touching, such as when an officer leans on the door of a car while questioning its driver, from being a search. Gonzales’s tapping of the tire was not that type of incidental conduct. He touched the tire in order to help find out what was inside. That satisfies the second Jones requirement.

So whether the touching was a search comes down to whether it was a trespass. Muniz-Melchor thought tapping a tank “may have constituted a technical trespass,” but did not decide if that was the case. 894 F.2d at 1435. Its “technical” qualifier may have come from the absence of damage to the tank, which modern tort law requires for trespass to chattel. See Jones, 565 U.S. at 419 & n.2 (Alito, J., concurring) (quoting W. Keeton et al., Prosser & Keeton On Law Of Torts § 14, at 87 (5th ed. 1984)). But in concluding that attaching a GPS to the exterior of a vehicle was a trespass, Jones relied on its reading of the common law of trespass as it existed in 1791 when the Fourth Amendment was ratified. Id. at 404-05 (tying the Fourth Amendment to common law trespass and concluding that a “physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted) (citing Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765)); id. at 419 & n.2 (Alito, J., concurring) (characterizing the common law for trespass to chattels as requiring only a “violation of ‘the dignitary interest in the inviolability of chattels” (quoting W. Keeton et al., Prosser & Keeton on Law of Torts § 14, at 87 (5th ed. 1984)). In terms of the physical intrusion, we see no difference between the Jones device touching the car and an officer touching the tire. Nor, apparently, does the government as it does not dispute that the tire tap was a trespass. Of course, the GPS device remained attached for a longer period and gathered a lot more information compared to a tire tap, but Jones found a trespass because of the physical contact the device made with the car at the moment it was affixed. Jones, 565 U.S. at 404 (focusing on the “installation of a GPS device”). Indeed, Justice Alito’s opinion in Jones critiques the majority’s trespass approach because it “largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation).” Id. at 424-25 (Alito, J., concurring). The also “relatively minor” act of tapping tires is thus a trespass. Because that trespass occurred to learn what was inside the tires, it qualifies as a search.

This trespass analysis might seem simplistic. But proponents of the property-based approach view its bright line as a virtue over the less predictable expectation-of-privacy inquiry. 565 U.S. at 412-13 (noting the line-drawing problems that would arise from applying the Katz test to the GPS tracking device); Erica Goldberg, How United States v. Jones Can Restore Our Faith in the Fourth Amendment, 110 Mich. L. Rev. First Impressions 62, 68-69 (2011) (suggesting that a property-based test provides a “clearer, cleaner metric of when the Fourth Amendment is implicated”). It may also seem troubling that the brief touching of a tire reveals far less information than other lawful conduct, like a dog sniff, that is not considered a search. See Illinois v. Cabelles, 543 U.S. 405, 409 (2005). That critique, however, views the search question through the invasion-of-privacy mindset. Rightly or wrongly, Jones held that a trespassory search implicates the Fourth Amendment even if it does not offend privacy interests. Under that property-based approach, Gonzales’s tapping of the tire was a search regardless of how insignificant it might seem.

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