Does the Trespass Theory of the Fourth Amendment Limit the Scope of Knock and Talks?

In United States v. Jones, 565 U.S. __ (2012), and Florida v. Jardines, 569 U.S. __ (2013), the Supreme Court announced a new, or perhaps revived an old, understanding of the Fourth Amendment that is closely tied to property rights and trespass. In Jones, the Court ruled that attaching a GPS tracking device to a suspect’s vehicle was a search because officers “physically occupied private property for the purpose of obtaining information.” In Jardines, the Court ruled that the implied invitation to approach the front door of a residence does not extend to an officer with a drug dog, so officers who went to the front porch of a suspect’s home with a canine conducted an “unlicensed physical intrusion.” In both cases, the Court resolved the question of whether the officers’ conduct was a Fourth Amendment search by focusing on property rights rather than on the existence of a reasonable expectation of privacy, though the Court made clear that the trespass test supplements, rather than replaces, the expectation of privacy framework announced in Katz v. United States, 389 U.S. 347 (1967). The trespass theory of the Fourth Amendment could have a significant impact on the scope of officers’ knock and talk authority, as discussed below. Limits on use of investigative techniques. Prior to Jones and Jardines, courts and commentators sometimes suggested that so long as officers remained on the entranceway to a residence, there could be no Fourth Amendment intrusion, because there is no reasonable expectation of privacy in the entranceway. [...]