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Constitutional Trespass, Laurent Sacharoff
Constitutional Trespass, Laurent Sacharoff
Laurent Sacharoff
The Supreme Court has recently created a trespass test for Fourth Amendment searches without explaining what type of trespass it envisions—one based on the common law of 1791, on the specific trespass law of the state where the search occurred, or on some other trespass principles. Indeed Florida v. Jardines, decided in 2013, raises the question whether the Court has created a trespass test at all, a seeming turnabout that largely recapitulates the Court’s 125- year history of confusion in which it has embraced, rejected, or simply ignored trespass as a test from era to era or even year to …