Justice Scalia Reminds Us That Jones AND Katz are the 4th Amendment tests

February 25th, 2014

Justice Scalia briefly concurred in Fernandez v. California to remind us that the opinion he wrote in Jones is still the law!

To be sure, under Katz v. United States, 389 U. S. 347 (1967), “property rights ‘are not the sole measure of Fourth Amendment violations.’” Florida v. Jardines, 569 U. S. 1, ___ (2013) (slip op., at 3). But as we have recently made clear, “[t]he Katz reasonable-expectations test ‘has been added to, not substituted for,’ the traditional property- based understanding of the Fourth Amendment.” Id., at ___ (slip op., at 9) (quoting United States v. Jones, 565 U. S. ___, ___ (2012) (slip op., at 8)). I would therefore find this a more difficult case if it were established that property law did not give petitioner’s cotenant the right to admit visitors over petitioner’s objection.  

Citing some old property treatises, Justice Scalia does not find a violation of the Jones 4th Amendment “property right” test.

That difficulty does not arise, however, because the authorities cited by the ami- cus association fail to establish that a guest would commit a trespass if one of two joint tenants invited the guest to enter and the other tenant forbade the guest to do so. Indeed, what limited authority there is on the subject points to the opposite conclusion. See, e.g., 86 C. J. S., Tenancy in Common §144, p. 354 (2006) (a licensee of one tenant “is not liable in trespass to nonconsenting coten- ants”); Dinsmore v. Renfroe, 66 Cal. App. 207, 212–214, 225 P. 886, 888–889 (1924); Buchanan v. Jencks, 38 R. I. 443, 446–451, 96 A. 307, 309–311 (1916) (and cases cited therein); cf. 2 H. Tiffany, Real Property §457, p. 274 (3d ed. 1939) (endorsing the opposite view but acknowledging that “there is little authority” on the question). There accordingly is no basis for us to conclude that the police infringed on any property right of petitioner’s when they entered the premises with his cotenant’s consent.

Note: the majority, by Justice Alito (who didn’t really agree with Scalia’s opinion in Jones), did not cite Jones.