New law review article: Florida v. Jardines: Why the Supreme Court Did Not Say ‘Trespass,’

Bradley Polling, Florida v. Jardines: Why the Supreme Court Did Not Say ‘Trespass,’ 3 Wake Forest L. Rev. Online 19 (May 19, 2013). Abstract:

This article speculates as to why the Supreme Court, applying the property-based leg of United States v. Jones, did not use the word “trespass” even once in the majority opinion, as it had been used dozens of times in Jones. It asserts that considerations of comity and federalism may have driven the Court’s choice of language.

Introduction
The Supreme Court recently handed down its decision in Florida v. Jardines,[1] affirming by a 5-4 vote the Florida Supreme Court’s ruling[2] that the police’s use of a trained narcotics detection dog on the front porch of a home is a “search” within the meaning of the Fourth Amendment. This case is the first time the Court has applied the non-Katz-based search doctrine articulated in United States v. Jones.[3] As will be more fully elaborated below, it is my claim that the Court purposely avoided using the word “trespass” so as not to reverse the Florida state courts, which had decided that the police were lawfully present on the defendant’s property at the time of the dog sniff, on an issue lying at the heart of state court competence—that is, application of the common law of trespass.

I’ve wondered that myself. Now we have the probable answer.