N.D.Ind.: Jones’s trespass reminder doesn’t overrule Greenwood trash search case

The Jones trespass prong doesn’t affect the Greenwood trash search case. Greenwood isn’t even mentioned, so it wasn’t overruled. United States v. Weston, 2012 U.S. Dist. LEXIS 129201 (N.D. Ind. September 10, 2012):

Relying on United States v. Jones, 132 S.Ct. 945 (2012), which held that a Fourth Amendment “search” occurred where law enforcement attached a global-positioning-system device to a vehicle and used the device to track the vehicle’s location on public streets, Defendant argues Greenwood is no longer good law. It’s a tough sell-none of the three Supreme Court opinions in Jones even mentions Greenwood. Surely if the Jones Court had intended to overrule a decision as influential as Greenwood, it would have said so.

A passage from Justice Sotomayor’s concurrence provides the strongest support for Defendant’s interpretation, but it’s nowhere near strong enough. In it, Justice Sotomayor expresses openness to reconsidering “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Jones, 132 S.Ct. at 957. To be sure, the Greenwood majority reaffirmed precisely that premise, which it traced to Smith v. Maryland, 442 U.S. 735, 743-44 (1979). Greenwood, 486 U.S. at 41. But no other justice joined Justice Sotomayor’s opinion. (This is no critique of Justice Sotomayor’s opinion, only a demonstration of the absence of any reason to think another justice shares her view.) Moreover, Justice Sotomayor’s apparent willingness to reexamine the third-party principle was not essential to her decision to join the Jones majority. See Jones, 132 S.Ct. at 957 (“Resolution of these difficult questions in this case is unnecessary, … because the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.”).