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Brian Sawers on History in United States v. Jones
Michael Ramsey

Recently published by the Michigan Law Review's online supplement First Impressions, Brian Sawers (University of Maryland Law School): Keeping up with the  Joneses: Making Sure Your History Is Just as Wrong as Everyone Else's.  From the introduction:

In United States v. Jones, the latest case on Fourth Amendment searches, the Court returned to trespass as a bar on warrantless searches. It held that attaching an electronic tracking device to an individual’s car constituted a search. Because attaching the device constituted a trespass, it was a search and the government was required to obtain a warrant. The majority opinion and concurrences duel on whether reviving trespass in Fourth Amendment jurisprudence is wise, but all agree on the historical point that landowners always had the right to sue for trespasses on their property, including on open fields.

Quoting the Prosser and Keaton treatise, Justice Alito’s concurrence asserts that “[a]t common law, any unauthorized intrusion on private property was actionable.” Writing for the majority, Justice Scalia agrees that unauthorized entry in private land constituted a trespass at common law.

The justices and the treatise writers are indisputably right about the common law of England. The English law of trespass grants the landowner a right to exclude from all private land, including empty fields and standing timber. But the justices are wrong about American law. Landowners in early America could only exclude others from their homes (and curtilage) and sometimes from fenced land. Landowners could not exclude from open land; thus, unwanted visitors to open lands committed no trespass.