The United States Supreme Court in 2012 in United States v. Jones changed the legal test for what constitutes a police search under the Fourth Amendment. After Jones, a search occurs when: (1) an individual’s privacy rights are violated (“Katz” test); and/or (2) an individual’s property is trespassed upon (“Jones” test). From 1967 until Jones, only the Katz test was used. In light of this significant change, this study explores two questions using a content analysis approach: (1) the choice of legal test used by federal appellate courts to decide the “search” question (i.e., the Jones test, Katz test, or both tests), and (2) these courts’ holding regarding whether a “search” occurred. Most of these courts are relying upon Jones in some fashion; however, Jones has not prevented these courts from frequently applying Katz. Though reliance on Jones alone has led to uniform determinations by courts of a “search” and hence enhanced Fourth Amendment protections, overall post-Jones there are nearly an equal number of courts finding a “search” and “no search.” When courts apply Katz alone to evaluate a search, they have held no search occurred. In sum, Jones’ impact on Fourth Amendment search law has been incremental and gradual.
A Content Analysis of Post-Jones Federal Appellate Cases: Implications of Jones for Fourth Amendment Search Law
Christopher Totten is an Associate Professor of Criminal Justice (Law) in the Department of Sociology and Criminal Justice at Kennesaw State University. A graduate of Princeton University (A.B. 1997) and Georgetown University Law Center (J.D. 2000; LL.M. 2002), his research interests span criminal procedure and law (focus on police searches/seizures and interrogations), international crime (focus on adjudication), and criminal law and society (focus on courts/jurisprudence and police attitudes using social science research techniques). He is also the criminal law commentator of the Criminal Law Bulletin (volumes 46 through 51).
James Purdon is a recent graduate (2015) of the Master of Science in Criminal Justice (MSCJ) program in the Department of Sociology and Criminal Justice at Kennesaw State University. The research for this paper was conducted, in part, during a graduate research assistantship he completed under the supervision of Dr. Totten. This research also formed the basis, in part, for his successfully completed thesis. This thesis was completed in partial fulfillment of the MSCJ degree requirements.
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Christopher Totten, James Purdon; A Content Analysis of Post-Jones Federal Appellate Cases: Implications of Jones for Fourth Amendment Search Law. New Criminal Law Review 1 May 2017; 20 (2): 233–308. doi: https://doi.org/10.1525/nclr.2017.20.2.233
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