State v. Pendleton

1
IN THE SUPREME COURT OF THE STATE OF IDAHO
Docket No. 53539
STATE OF IDAHO, )
)
Plaintiff-Appellant, ) Boise, May 2026 Term
)
v. ) Opinion Filed: October 14, 2026
)
SHAWNA RAE PENDLETON, ) Melanie Gagnepain, Clerk
)
Defendant-Respondent. )
____________________________________)
Appeal from the District Court of the Fourth Judicial District of the State of Idaho,
Ada County. Jason D. Scott, District Judge.
The district court’s order granting the motion to suppress is reversed and the case
is remanded.
Raúl R. Labrador, Idaho Attorney General, Boise, for Appellant. Kale D. Gans
argued.
Erik R. Lehtinen, Idaho State Appellate Public Defender, Boise, for Respondent.
Sally J. Cooley argued.
_________________________________
BEVAN, Justice.
This case presents a novel question in Idaho’s continuing effort to define the constitutional
boundaries of drug dog sniffs during traffic stops: Does a drug dog’s momentary contact with the
exterior of a vehicle transform an otherwise lawful free-air sniff into a trespassory search under
the Fourth Amendment? In October 2021, Shawna Rae Pendleton was stopped by police because
her vehicle registration had expired. During the stop, Officer Tad Miller and his drug dog, Edo,
were summoned to conduct a free-air sniff of Pendleton’s vehicle. As Edo worked around the
vehicle, he closely sniffed the driver’s-side and passenger-side doors, briefly touching at least one
door handle with the tip of his nose. Edo alerted to the odor of illegal drugs, and a subsequent
search of the vehicle revealed methamphetamine, marijuana, alprazolam, and drug paraphernalia.
Pendleton was subsequently arrested and charged with three counts of possession of a controlled
substance and one count of possession of drug paraphernalia.
Pendleton moved to suppress the evidence obtained from the stop, arguing that Edo’s brief
contact with her vehicle constituted a trespass that transformed the free-air sniff into a search under

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the Fourth Amendment. The district court, relying on State v. Dorff, 171 Idaho 818, 526 P.3d 988
(2023), agreed and granted Pendleton’s motion. The State appealed, contending that Edo’s
momentary contact with the exterior of the vehicle was not a trespass because it did not amount to
intermeddling as defined in Dorff, 171 Idaho at 826–27, 526 P.3d at 996–97. Alternatively, the
State argues that Edo’s behavior prior to the contact constituted an alert, giving the State probable
cause to search the vehicle regardless of any subsequent contact. The Court of Appeals heard this
case initially and agreed with the State, reversing the district court. Pendleton filed a petition for
review with this Court, which was granted. As set forth below, we reverse the decision of the
district court.
I. FACTUAL AND PROCEDURAL B ACKGROUND
This is the second time this case has come before this Court. Three years ago, we decided
State v. Pendleton (Pendleton I), 172 Idaho 825, 537 P.3d 66 (2023). That appeal centered on
Pendleton’s discovery requests related to Edo’s past performance. See id. at 831, 537 P.3d at 72.
We ultimately held that the district court had not abused its discretion in compelling the State to
produce the requested material. See id. at 837–38, 537 P.3d at 78–79. This appeal turns on a
different issue: whether Edo transformed the free-air sniff into an unreasonable search by touching
Pendleton’s vehicle with his nose. While there is some relation between the two appeals, this
appeal focuses on facts that were not relevant in Pendleton I. As such, a brief factual background
will highlight those differences.
A. Factual Background
On October 29, 2021, Officer Miller and Edo were asked to conduct a free-air sniff around
Pendleton’s vehicle. Officer Miller and Edo arrived at the scene and exited the police vehicle after
Officer Miller had attached a six-foot leash to Edo’s collar. Officer Miller then walked Edo to a
spot a few feet in front of Pendleton’s car where he ordered Edo to sit. Once Edo was situated,
Officer Miller ordered the dog to begin the free-air sniff. Edo began by rapidly approaching the
vehicle’s driver side door, “making a huffing sound about three times along the way.” Officer
Miller interpreted Edo’s behavior, “especially the huffing, a product of intense, closed-mouth
sniffing—as a signal that Edo had detected a drug odor and was tracking the odor to its source.”
Edo briefly paused near the exterior handle of the driver’s door and “nosed” it before turning his
head sharply toward Officer Miller. This movement, which Officer Miller calls a “head snap,” is
Edo’s “final alert” to the presence of drugs.

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After Edo gave this first “final alert,” Officer Miller instructed Edo to continue the free-air
sniff. Edo then “exhibited substantially the same behavior” as he approached the front passenger
side door. Edo “pressed his nose toward that door’s exterior handle, likely touching it as well, and
exhibited substantially the same final-alert behavior” as before. The entire free air sniff only lasted
about ten seconds. Based on Edo’s behavior, Officer Miller determined that Edo had alerted to the
presence of drugs, giving the police probable cause to search the car. The police then searched the
car and found some of the contraband at issue, leading to Pendleton’s arrest. The police found
additional contraband on Pendleton’s person after conducting a search incident to arrest. The
police did not have a search warrant before conducting either search.
B. Procedural Background
After this Court issued its decision in Pendleton I, Pendleton filed a motion to suppress the
evidence gathered from the traffic stop. Pendleton raised two arguments in her motion to suppress.
The first was that Edo had trespassed against her car by touching it with his nose, thereby
converting the free-air sniff into an unlawful search. The second was that Edo was unreliable as a
drug dog. The State opposed Pendleton’s motion to suppress, maintaining that Edo was a reliable
drug-detection dog, and that the sniff did not constitute a trespass. Specifically, the State contended
that Edo’s brief contact with the vehicle did not amount to intermeddling and was therefore not
trespassory. Alternatively, the State asserted that Edo had already alerted to the presence of illegal
drugs before making contact with the vehicle, thereby providing probable cause to conduct the
search.
The district court bifurcated its consideration of Pendleton’s motion, choosing to first focus
on Pendleton’s argument that Edo had trespassed against her vehicle. It reserved consideration of
Edo’s reliability for a later date, in the event it concluded Edo had not trespassed against the
vehicle. At the hearing on the trespass issue, the State presented witness testimony from Officer
Miller and Corporal Steve Bonas about the behaviors that Edo exhibited when alerting to drugs.
Officer Miller also testified that he believed that Edo had started alerting to the presence of
narcotics prior to touching Pendleton’s vehicle with his nose. Pendleton did not present any
witnesses, though she did introduce a video exhibit of the sniff itself. Both parties also presented
argument, reiterating their positions from their earlier filings. Following those arguments, the
district court took the issue under advisement.

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The district court issued an order granting Pendleton’s motion to suppress. While the
district court found the State’s witnesses to be generally credible, the court ruled that the sniff had
escalated to an unlawful search. The court determined that Edo had trespassed against Pendleton’s
vehicle by touching it with his nose, and that the contact had been initiated in the pursuit of
additional information. The district court also concluded that a reasonable person would not have
discerned that Edo had tracked the drug odor to the vehicle before Edo touched the vehicle with
his nose. The district court noted that the sniff was “very brief,” and that Edo had nosed the door
handle only a few seconds after the sniff had started. The district court doubted that Officer Miller
or a reasonable person could have identified the split second that Edo traced the odor to the door
before Edo made contact because “Edo nosed the door handle almost immediately after the sniff
began.” As such, the district court determined that fidelity to this Court’s precedent in State v.
Dorff, 171 Idaho 818, 526 P.3d 988 (2023), required suppression.
The State appealed the district court’s order, and the appeal was assigned to the Court of
Appeals. That court reversed on both grounds, determining that the contact was not a trespass and
that Edo’s behavior before contact gave the police probable cause to search the vehicle. See State
v. Pendleton, No. 51881, 2025 WL 2485591 (Ct. App. Aug. 29, 2025). Pendleton timely filed a
petition for review with this Court, which was granted.
II. S TANDARDS OF REVIEW
“When reviewing a case on petition for review from the Court of Appeals this Court gives
due consideration to the decision reached by the Court of Appeals . . . .” State v. Miramontes, 170
Idaho 920, 923, 517 P.3d 849, 852 (2022) (quoting State v. Gonzales, 165 Idaho 667, 671, 450
P.3d 315, 319 (2019)). However, we directly review the decision of the district court. Id. (citation
omitted). “When this Court reviews a district court’s order granting or denying a motion to
suppress, the standard of review is bifurcated.” Id. (citation modified). This Court accepts the trial
court’s findings of fact “unless they are clearly erroneous,” but “freely review[s] the trial court’s
application of constitutional principles in light of the facts found.” Id. (quoting Gonzales, 165
Idaho at 671, 450 P.3d at 319).
III. ANALYSIS
The State advanced two grounds for reversing the district court’s suppression order.
Because we conclude that Edo’s contact with Pendleton’s vehicle did not constitute a search under

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the Fourth Amendment, we need not address the State’s alternative argument that probable cause
existed before Edo made contact with the vehicle.
A. The district court erred by concluding that the drug dog’s minimal contact with the
vehicle’s door constituted a search.
The State concedes that Edo touched Pendleton’s car briefly with his nose, but the State
argues that this contact did not transform the free-air sniff into an unreasonable search, asserting
that Edo did not trespass against Pendleton’s vehicle because his contact with the vehicle’s door
handles was “minimal” and “incidental.” We agree and hold that Edo did not trespass against
Pendleton’s vehicle by briefly contacting the handle of the car with the tip of his nose.
It is the well-established, fundamental right of all Americans “to be secure in their persons,
houses, papers, and effects[] against unreasonable searches and seizures . . . .” U.S. Const. amend.
IV. And “[i]t is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth]
Amendment.” United States v. Jones, 565 U.S. 400, 404 (2012) (citation omitted). However, free-
air sniffs by well-trained narcotic dogs are considered “sui generis” in that they are typically not
treated as searches under the Fourth Amendment. Illinois v. Caballes, 543 U.S. 405, 408–09 (2005)
(citations omitted); see also State v. Dorff, 171 Idaho 818, 828, 526 P.3d 988, 998 (2023)
(recognizing that a “free-air” sniff is not a search under the Fourth Amendment because there is
no privacy interest in the free-air that surrounds a vehicle). Nevertheless, there are instances in
which drug dog sniffs can become unreasonable searches. See Florida v. Jardines, 569 U.S. 1, 11–
12 (2013) (holding that a drug dog sniff was an unreasonable search because it was conducted
while standing on the curtilage of the defendant’s home).
The U.S. Supreme Court has identified two different tests for determining if government
action constitutes a search under the Fourth Amendment: the “reasonable-expectation-of-privacy
test” and the “common-law trespassory test.” Jones, 565 U.S. at 409. Action that constitutes a
search under either test may violate the Fourth Amendment if unreasonable. See id. In this case,
the relevant test is the “common-law trespassory test,” also referred to as the “property-based test”
in Dorff. See Dorff, 171 Idaho at 821, 823–24, 526 P.3d at 991, 993–94.
The common-law trespassory test, which encompasses the “traditional property-based
understanding of the Fourth Amendment,” considers whether “the Government obtain[ed]
information by physically intruding” on constitutionally protected areas. Jardines, 569 U.S. at 5,
11 (citations omitted). If the government has trespassed against this “proprietary interest” for the
purpose of obtaining information, then a Fourth Amendment search has occurred. See Dorff, 171

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Idaho at 824, 526 P.3d at 994. See also Jardines, 569 U.S. at 5, 11. In the drug dog context, a sniff
of a vehicle becomes a search for Fourth Amendment purposes when the dog has “(1) trespassed
against [the defendant’s] vehicle (2) for the purpose of obtaining information about, or related to,
the vehicle.” Dorff, 171 Idaho at 824, 526 P.3d at 994 (citation modified). In Idaho, a drug dog
trespasses against a defendant’s vehicle when the dog “intermeddles” with the vehicle. See id. at
826–27, 526 P.3d at 996–97. Contact that does not rise to the level of intermeddling does not
constitute a trespass for Fourth Amendment purposes. See id. at 827–28, 526 P.3d at 997–98.
The disagreement over whether Edo trespassed boils down to the parties’ differing
interpretations of the word “intermeddle.” This Court in Dorff stated that it “is often relatively
straightforward” to determine if something constitutes intermeddling. Id. at 827, 526 P.3d at 997.
This Court stated that intermeddling is “the difference between someone who brushes up against
your purse while walking by—and someone who, without privilege or consent, rests their hand on
your purse or puts their fingers into your purse . . . .” Id. “It is also the difference between a dog’s
tail that brushes against the bumper of your vehicle as it walks by—and a dog that, without
privilege or consent, approaches a vehicle to jump on its roof, sit on its hood, stand on its window
or door—or enter into your vehicle.” Id.
In this case, the district court took an expansive view of the term “intermeddle.” Relying
on this Court’s statement in Dorff that “intentionally bringing about a physical contact with the
chattel” constitutes intermeddling, 171 Idaho at 826, 526 P.3d at 996 (quoting Restatement
(Second) of Torts § 217 cmt. e (1965)), the district court concluded that Edo’s contact with the
door handle was sufficient to constitute a trespass to chattels. In reaching that conclusion, the
district court analogized Edo’s conduct to a thief brushing the outside of a purse to discern its
contents, reasoning that the contact was intentionally made to obtain information and therefore
constituted intermeddling.
The State stresses that intermeddling is a “heightened form of contact” that “violates the
rights to possess, use, or exclude, or some combination of those rights.” (Quoting Dorff, 171 Idaho
at 827–28, 526 P.3d at 997–98). Accordingly, the State argues that intermeddling requires
intentional contact of such a character or degree that it meaningfully interferes with the owner’s
possessory interest in the property. Because Edo only briefly touched the door handle with the tip
of his nose, the State contends that the contact was neither intermeddling nor trespassory. We

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agree. Intermeddling requires more than minimal physical contact; it requires a meaningful
interference with the owner’s possessory interest in property.
In Dorff, this Court noted the historical meaning of “intermeddling” as “‘[i]nterposing
officiously’ or ‘intruding[.]’” 171 Idaho at 826–27, 526 P.3d at 996–97 (quoting Intermeddling,
Webster’s Dictionary (1828), https://webstersdictionary1828.com/Dictionary/intermeddling).
Historically, to “interpose” meant “[t]o place between or among; to thrust in; to intrude, as an
obstruction, interruption or inconvenience.” Interpose, Webster’s Dictionary (1828),
https://webstersdictionary1828.com/Dictionary/interpose. These concepts contemplate conduct
that intrudes upon, obstructs, or interferes with another’s possessory interests; they do not
encompass every physical contact with property. A fleeting, momentary contact with another’s
property, standing alone, does not constitute an obstruction, interruption, or inconvenience and
therefore does not amount to an interference with the owner’s possessory interest. See Dorff, 171
Idaho at 827, 526 P.3d at 997 (noting that persistent contact may amount to a continuing trespass
because it interferes with the owner’s exclusive, sole right of possession).
Indeed, this Court has described intermeddling as a “heightened form of contact” that
violates the “dignitary or property interests in the inviolability of th[e] chattel . . . . ” Id. at 826–
27, 526 P.3d at 996–97. The adjective “heightened” modifies the nature of the contact itself, not
merely the actor’s state of mind. To be sure, the accidental or unavoidable nature of the conduct
may excuse contact that would otherwise be objectionable. But the converse does not follow.
Contact does not become a heightened intrusion simply because it was intentional. Rather, the
contact must itself be of such a character or degree that it meaningfully interferes with the owner’s
possessory interest in the property. A person who briefly places a hand on another’s vehicle while
walking through a crowded parking lot has intentionally touched the vehicle, but few would
characterize that minimal contact as an intrusion upon the owner’s possessory rights. Intentional
contact alone is therefore insufficient.
Indeed, the Restatement language (as quoted in Dorff) relied upon by the district court
reinforces this distinction. As noted above, the district court quoted Dorff as stating that
“[i]ntentionally bringing about a physical contact with the chattel” constitutes intermeddling.
(Quoting Dorff, 171 Idaho at 826, 526 P.3d at 996). However, that quotation was only part of the
Restatement’s definition. In full, the Restatement, as quoted in Dorff, defines “intermeddling” as
“intentionally bringing about a physical contact with the chattel[,] as when an actor beats

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another’s horse or dog, or by intentionally directing an object or missile against it.” Id. at 826,
526 P.3d at 996 (emphasis added) (citation modified).
The Restatement’s illustrations are significant. They do not describe mere intentional
contact with another’s property. Instead, they describe the kind of intentional physical contact that
intrudes upon or interferes with the owner’s possessory interest in the property. See Restatement
(Second) of Torts § 217 cmt. e (1965). In Dorff, this Court was describing a “heightened” form of
intentional contact, not just any kind of intentional contact. Thus, the phrase “physical contact”
cannot be read in isolation. After all, the Restatement did not define intermeddling as petting a dog
without permission. See Restatement (Second) of Torts § 217 cmt. e (1965). Rather, the
Restatement described intermeddling as beating a dog without permission. Id. That understanding
sheds light on Dorff’s description of intermeddling as a “heightened form of contact.” See 171
Idaho at 827, 526 P.3d at 997.
Applying the foregoing analysis, we conclude that Edo’s contact with the car did not rise
to the level of intermeddling. The exhibit provided by Pendleton shows that Edo approached the
door handle and briefly touched it with the tip of his nose. The contact lasted for less than one
second and ended when Edo pulled away to give his final alert. Edo neither entered nor occupied
any portion of the vehicle, and his momentary contact was not the type of contact that interfered
with Pendleton’s possessory interest in the property. See id. (noting that it is a continuing trespass
to make “persistent contact” with another’s effects, interfering with the owner’s exclusive, sole
right of occupation).1
In short, Edo’s contact with the door handle did not obstruct, interrupt, or inconvenience
Pendleton’s possession of the vehicle. Nor did the contact meaningfully interfere with Pendleton’s
right to possess, use, or exclude others from the vehicle. Accordingly, we hold that the contact did
not constitute intermeddling and therefore was not trespassory.
Edo’s contact with Pendleton’s vehicle did not constitute a trespass. Absent a trespass, the
sniff did not become a search within the meaning of the Fourth Amendment, regardless of whether
1 Note that the duration of the contact is relevant only to the question of continuing trespass. See Dorff, 171 Idaho at
829, 526 P.3d at 999 (holding that the amount of time that the drug dog had his paws on the vehicle was “not
dispositive” of whether the contact amounted to intermeddling, but “the seconds that d[id] pass” while the dog
“occupied” the vehicle were sufficient to constitute intermeddling).

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the contact was made for the purpose of obtaining information. The district court therefore erred
in granting Pendleton’s motion to suppress on that basis.
IV. CONCLUSION
We hold that the district court erred by granting Pendleton’s motion to suppress. We
reverse and remand for further proceedings consistent with this opinion.
Chief Justice BRODY and Justice ZAHN CONCUR.
MOELLER, J., concurring in the result.
I concur in the majority’s holding that a drug dog’s brief contact with the exterior of a car
does not constitute an unreasonable search under the Fourth Amendment. This outcome is logically
and legally sound. However, I write separately because this case continues to raise the very
concerns I expressed in my dissent in State v. Dorff, 171 Idaho 818, 526 P.3d 988 (2022) (Moeller,
J., dissenting), and further steers our dog sniff jurisprudence deeper into the same “murky and
uncertain legal waters” of which I warned.
Unfortunately, the majority opinion follows the path of Dorff by scrutinizing the natural
animal behavior of a drug detection dog, viewing it through the lens of human intent, and then
deciding whether the dog “intermeddled.” While in this instance the majority correctly concluded
that the dog’s brief touching of the exterior of the car with its nose was insufficient to establish
that the dog had intermeddled, the majority has again tethered itself to the troubling common law
trespass analysis established in Dorff. Thus, we will continue to require trial judges to ascertain
whether a drug detection dog’s action violated a defendant’s rights by relying on principles
grounded in tort law, not the Fourth Amendment to the United States Constitution.
In Dorff, the Court held that a drug dog’s contact must amount to “intermeddling” to qualify
as a “trespass” under its property-based test. The Court defined the term “intermeddling” as
“[i]ntentionally bringing about a physical contact with the chattel[,] as when an actor beats
another’s horse or dog, or by intentionally directing an object or missile against it.” Dorff, 171
Idaho at 826, 526 P.3d at 996 (quoting R ESTATEMENT (S ECOND) OF TORTS § 217 cmt. e (1965)).
Thus, the dog’s intent was unavoidably made part of the analysis. Heeding this precedent, the
district court in this case concluded that Edo’s brief contact with the car door’s handle was an
intentional touch and constituted a trespass of chattels. In reversing that decision, the majority has
clarified that the intermeddling described in Dorff refers to a heightened form of intentional

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contact. However, by continuing to rely on the concept of intermeddling, an approach grounded in
common law trespass, the Court has repeated its earlier constitutional misstep.
This Court’s reasoning in Dorff relied heavily on the United States Supreme Court’s ruling
in United States v. Jones, 565 U.S. 400 (2012). However, to understand the changes Jones wrought
in Fourth Amendment law, we must first harken back to the status of the law before Jones was
decided. In Silverman v. United States, 365 U.S. 505 (1961), the United States Supreme Court
explicitly rejected a trespass-based analysis and adopted a physical intrusion test in evaluating
searches under the Fourth Amendment. The Supreme Court then explained: “Fourth Amendment
rights are not inevitably measurable in terms of ancient niceties of tort or real property law. . . .
[The] decision here does not turn upon the technicality of a trespass upon a party wall as a matter
of local law. It is based upon the reality of an actual intrusion into a constitutionally protected
area.” Id. at 511–512. Later in Katz v. United States, 389 U.S. 347, 353 (1967), which concerned
an electronic listening recording device attached to a public telephone booth, the Court clarified
that an unconstitutional search can still occur even without a physical intrusion. The Court
reasoned that, “once it is recognized that the Fourth Amendment protects people—and not simply
areas—against unreasonable searches and seizures it becomes clear that the reach of the
Amendment cannot turn upon the presence or absence of a physical intrusion into any given
enclosure.” Katz, 389 U.S. at 353 (internal quotation marks omitted).
Following Katz, the Supreme Court seemed to depart from its prior property-based test and
began looking to the “reasonable-expectation-of-privacy test” as the only relevant search test. In
Smith v. Maryland, 442 U.S. 735, 739 (1979), the Supreme Court explained that Katz is “our
lodestar” in determining whether governmental activities constituted a search. The Fourth
Amendment landscape suddenly changed again in 2012 with the United States Supreme Court’s
decision in United States v. Jones, 565 U.S. 400, 406 (2012), which breathed new life into the
“property-based approach” that preceded Katz. (citing Kyllo v. United States, 533 U.S. 27, 31
(2001). See Orin S. Kerr, The Two Tests of Search Law: What Is the Jones Test, and What Does
That Say About Katz?, 103 Wash. U.L. Rev. 309, 325 (2025).
The majority in Dorff quoted heavily from Jones in support of their holding. For example,
it highlighted the following language: “Although neither test [property-based or reasonable
expectation of privacy] is exclusive or necessary to determining whether a ‘search’ occurred within
the meaning of the Fourth Amendment, . . . the traditional property-based test endures as a

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‘baseline’ of protection against governmental searches as it existed when the Fourth Amendment
was adopted.” Dorff, 171 Idaho at 823, 526 P.3d at 993 (citing Jones, 565 U.S. at 411). The Dorff
majority then opted to apply only a trespass-based analysis, holding: “Like our decisions in
Randall, [169 Idaho 358, 370, 469 P.3d 844, 856 (2021)], and Howard, [169 Idaho 379, 382–83,
496 P.3d 865, 868–69 (2021)], this case is only concerned with the property-based test—not the
“reasonable expectation of privacy” test under Katz.” Id. (emphasis in original).
It is this statement in Dorff that clearly illuminates where its constitutional misstep
occurred. The Idaho cases Dorff relied on, Howard and Randall, concerned significant intrusions
into a constitutionally protected area (drug dogs entering the interior of a vehicle), as did Jones
(affixing a GPS device to a car was deemed a “physical intrusion”). Jones, 565 U.S. at 404.
However, Dorff was not an intrusion case—and neither is the case at hand. The drug dog in Dorff
and in this case only made contact with the exterior of the vehicles. Thus, there was no “intrusion”
into a constitutionally protected area.
An examination of Fourth Amendment law after Jones helps clarify that Jones
implemented an intrusion standard—not the trespass-based standard applied by the majority here
and in Dorff. Two major Supreme Court cases following Jones, Florida v. Jardines, 569 U.S. 1
(2013), and Grady v. North Carolina, 575 U.S. 306 (2015), clarified that the pre-Katz test restored
in Jones was actually the Silverman intrusion test—not a common law trespass test. Both cases
described Jones as an intrusion case, and, more importantly, never once used the word “trespass”
in their analysis. See Kerr, at 334. Accordingly, the Jones test is best understood as an intrusion
standard applicable when there is an actual intrusion of the interior, or the government physically
attaches something to the surface of one’s person, house, paper, or effects. See Grady, 575 U.S. at
309. While physical attachment may not actually breach the exterior, the attachment is such a
substantial interference that “the Government obtain[ed] information by physically intruding on a
constitutionally protected area, such [that] a search [] undoubtedly occurred.” Grady, 575 U.S. at
309.
In sum, Dorff went wrong when it utilized a tort-based trespass analysis, reserved for cases
where there was an actual intrusion into a constitutionally protected area, and applied it to a case
where there was no such intrusion. Unfortunately, such an approach is as improper in this case as
it was in Dorff. The first question asked in both cases should have been: absent a physical intrusion
into the vehicle, did the defendant in either case have a reasonable expectation of privacy in the

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exterior portions of the vehicle touched by the drug dogs? Instead, the Court asked the wrong
question in both cases: did the contact with the exterior of the vehicle amount to intermeddling,
thereby rendering it a trespass of chattels?
It is worth remembering that not so long ago, this Court cautioned against relying on
trespass law to define Fourth Amendment rights:
As the Supreme Court of the United States has explained, there is no constitutional
nexus between criminal or civil trespass laws and Fourth Amendment
jurisprudence:
[I]t does not follow that the right to exclude conferred by trespass
law embodies a privacy interest also protected by the Fourth
Amendment. To the contrary, the common law of trespass furthers
a range of interests that have nothing to do with privacy and that
would not be served by applying the strictures of trespass law to
public officers.
Oliver v. United States, 466 U.S. 170, 184 n.15 (1984). In other words, trespass
laws are not rooted in the same constitutional soil from whence the reasonable
expectation of privacy standard has grown. See Kyllo v. United States, 533 U.S. 27,
34 (2001).
State v. Albertson, 165 Idaho 126, 130–31, 443 P.3d 140, 144–45 (2019) (internal citations
modified). Unfortunately, since Dorff, it appears that we may have retreated from this principle.
Idaho is not alone in confronting troublesome dog-sniff cases. Following our opinion in
Dorff, the Iowa Supreme Court addressed an almost identical issue in State v. Bauler, 8 N.W.3d
892, 894 (Iowa 2024), and reached the opposite conclusion. They held that “the legality of a dog
sniff does not turn on the fine point of whether the handler or the dog briefly touched the outside
of the vehicle, so long as there was no entry into the private space inside the vehicle.” Id. at 894–
95.2 This is consistent with our pre-Dorff dog-sniff jurisprudence, which I continue to believe was
the proper approach. See, Howard, 169 Idaho at 382–83, 496 P.3d at 868–69 (“[W]hen a law
enforcement drug dog intrudes, to any degree, into the interior space of a car during a drug sniff,
without express or implied consent to do so, a search has occurred under the Fourth Amendment.”);
State v. Randall, 169 Idaho at 370, 469 P.3d at 856 (“[T]hough an exterior sniff of a car is not a
search under Caballes, it becomes a search under Jones when a drug dog trespasses into the car’s
interior.”).
2 Of note, the Iowa Supreme Court facetiously referred to its holding as “ruff justice.” Bauler, 8 N.W.3d at 894.

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Moreover, the Iowa Supreme Court’s reasoning for treating a dog sniff differently from a
search by a human actor was both constitutionally grounded and logically compelling. First, they
cited United States v. Place, 462 U.S. 696, 707 (1983), for the longstanding principle that “a canine
sniff is sui generis. We are aware of no other investigative procedure that is so limited both in the
manner in which the information is obtained and in the content of the information revealed by the
procedure.” Next, referencing our decision in Dorff, they considered the real-world implications
of what they were deciding:
Obviously, a dog is not the same as a human. No one cares if a dog examines
their cell phone or follows them into the bathroom. So applying common law
concepts derived from human interactions in an anthropomorphic manner to dog
sniffs makes no sense. When a handler, in the course of an otherwise lawful exterior
dog sniff, briefly touches and allows the dog to briefly touch the outside of the
vehicle, that innocuous occurrence should be considered a nonevent. Would anyone
complain if a dog sniffing parked cars for explosives outside our state capitol
building briefly put its paws on one of those vehicles? If there's an issue, it’s the
dog sniff itself, not the paws. A dog sniff that takes place in the open air, and does
not go beyond the normal scope of a dog sniff, is as valid under article I, section 8
as it is under the Fourth Amendment.
This is the very point made by the dissenters in Dorff.
Bauler, 8 N.W.3d at 906.
Here, in addition to its Fourth Amendment infirmities, the majority’s ruling continues to
improvidently sail in Dorff’s wake by ignoring the very nature of dogs. The unavoidable truth that
no one has confronted is that Edo, as the district court found, most likely did intend to contact
Pendleton’s car with his nose. He did so because dogs instinctively use their entire body when
picking up a scent—not because they are attempting to intermeddle with someone’s personal
chattels. See Dorff, 171 Idaho at 831, 526 P.3d at 1001 (Moeller, J., dissenting). Put simply, a dog
is not capable of formulating the requisite intent to intermeddle.3 Thus, an instinctive act by a dog
is not the equivalent of an intent to intermeddle even if we were to apply the tort-based trespass
analysis from Dorff. Again, as the Iowa Supreme Court aptly observed: “applying common law
concepts derived from human interactions in an anthropomorphic manner to dog sniffs makes no
sense.” Bauler, 8 N.W.3d Id. at 906.
Returning to the facts of this case, whether Edo “intermeddled” is irrelevant because his
actions (sniffing a car door’s handle and briefly contacting it with his nose) did not touch upon the
3 However, as most feline owners can attest, the jury may still be out on cats.

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core purpose of the Fourth Amendment—protecting the privacy and security of individuals against
unreasonable government intrusions. See State v. Rebo, 168 Idaho 234, 238, 482 P.3d 569, 573
(2021) (quoting Carpenter v. United States, 585 U.S. 296, 303 (2018)). Simply put, a dog’s brief,
minimal, and noninjurious contact with the exterior of a vehicle should not be considered a
constitutional violation when it threatens neither the privacy nor security of citizens—it is “just a
dog behaving like a dog.” Dorff, 171 Idaho at 831, 526 P.3d at 1001 (Moeller, J., dissenting). If a
car is somehow damaged by the dog’s contact, this can be resolved through a civil proceeding—
which is precisely where a common law trespass of chattels analysis belongs. Moreover, police
remain “responsible for training and controlling drug dogs as tools of enforcement” to ensure that
they follow proper procedures. Id. (citing Randall, 169 Idaho at 369, 496 P.3d at 855). However,
this does not mean the Court should regulate such a tool into inefficacy by imposing unrealistic
requirements that go against a drug dog’s very nature and create arbitrary distinctions unrelated to
the purposes of the Fourth Amendment.
My colleagues who have separately concurred deem my disagreement with Dorff’s
rationale as “purely academic.” It is not. The rule the Court leaves in place has a concrete and
unfortunate consequence: Idaho’s trial courts must continue to parse a drug dog’s intent through
Dorff’s tort-based intermeddling analysis, when a far simpler—and more constitutionally
sustainable—inquiry is available to them. The Fourth Amendment question is not what the dog
meant to do; it is what the dog did. In other words, our constitutional query should be whether the
drug dog actually intruded upon a constitutionally protected area or violated a reasonable
expectation of privacy, not what it intended to do. Ultimately, this approach would allow our trial
courts to fulfill the core purposes of the Fourth Amendment without requiring judges to borrow
from tort law and undertake the absurd task of divining a drug dog’s intentions.
Justice MEYER CONCURS.
BRODY, C.J., concurring.
I concur with the majority’s holding, consistent with State v. Dorff, 171 Idaho 818, 526
P.3d 988 (2023), that Edo’s incidental contact with Pendleton’s car does not rise to the level of
intermeddling sufficient to violate the Fourth Amendment’s prohibition against unreasonable
searches. I write separately to address the concurrence’s unfounded assertion that common-law
trespass doctrine should have no place in the Court’s Fourth Amendment jurisprudence.

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I begin by surveying the unresolved questions in the United States Supreme Court’s Fourth
Amendment “search” caselaw, which, contrary to the concurrence’s portrayal, accounts for the
“murky and uncertain legal waters” in this area. See Dorff, 171 Idaho at 829, 526 P.3d at 999
(Moeller, J., dissenting). I then explain why the use of common-law trespass principles to identify
a Fourth Amendment “search,” as embraced by a majority of this Court in Dorff, better accords
with the text and history of the Fourth Amendment than the physical intrusion standard the
concurrence urges this Court to adopt. The bottom line is that, until the Supreme Court revisits its
holding in Jones, I will not endorse overruling Dorff because of a purely academic disagreement
over the framework it adopted. The use of common‑law trespass principles, like the
physical‑intrusion standard, may be debated among scholars. But when we all agree on the
outcome that framework produces here, abandoning stare decisis to make a theoretical point would
elevate academic debate over judicial responsibility.
I.
The Fourth Amendment guarantees “[t]he right of the people to be secure in their persons,
houses, papers, and effects, against unreasonable searches and seizures . . . .” U.S. Const. amend.
IV. Its text evinces a concern both for “protecting people’s ‘persons’ and people’s relationships
with certain aspects of their external environment (their ‘houses, papers, and effects’).” Margaret
Jane Radin, Property and Personhood, 34 Stan. L. Rev. 957, 1001 (1982). Those dual concerns
explain why the United States Supreme Court has applied two distinct tests in the Fourth
Amendment “search” context. The first test looks to “common-law trespass,” United States v.
Jones, 565 U.S. 400, 405 (2012), and other property-based principles, see Florida v. Jardines, 569
U.S. 1, 6–7 (2013). The second test looks to a person’s “reasonable expectations of privacy.” See
Katz v. United States, 389 U.S. 347, 362 (1967) (Harlan, J., concurring). Taken together, these
alternative tests stand for the proposition “that government conduct can constitute a Fourth
Amendment search either when it infringes on a reasonable expectation of privacy or when it
involves a physical intrusion (a trespass) on a constitutionally protected space or thing (‘persons,
houses, papers, and effects’) for the purpose of obtaining information.” United States v. Ackerman,
831 F.3d 1292, 1307 (10th Cir. 2016) (citing Jones, 565 U.S. 400).
Admittedly, common-law trespass and the Fourth Amendment have had a fraught
relationship over the Supreme Court’s 125 years of grappling with their intersection. See generally
Laurent Sacharoff, Constitutional Trespass, 81 Tenn. L. Rev. 877, 883–92 (2014). The starting

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point in this history is Boyd v. United States, in which the Supreme Court held that a Fourth
Amendment “search” was not limited to “the breaking of [a man’s] door, and the rummaging of
his drawers” but included “all invasions on the part of the government . . . of the sanctity of a
man’s home and the privacies of life.” 116 U.S. 616, 630 (1886). Contra id. at 641 (Miller, J.,
concurring) (“If the mere service of a notice to produce a paper to be used as evidence . . . is a
search, then a change has taken place in the meaning of words.”).
The Supreme Court later reversed course in Olmstead v. United States, 277 U.S. 438
(1928). There, the Supreme Court adopted the rule that the Fourth Amendment applies only where
“an official search and seizure of [a man’s] person or such a seizure of his papers or his tangible
material effects or an actual physical invasion of his house ‘or curtilage’” occurs. Id. at 466.
Olmstead’s property-based inquiry was complicated further by the Supreme Court’s holding in
Silverman v. United States, 365 U.S. 505 (1961). There, the Supreme Court addressed whether law
enforcement’s insertion of a “spike mike” through an apartment wall into the heating duct of an
adjoining unit for the purpose of listening to conversations constituted a search. Id. at 506. The
Supreme Court held that employing the “spike mike” in this way amounted to a search because
“the officers overheard the petitioners’ conversations only by usurping part of the petitioners’
house or office—a heating system which was an integral part of the premises occupied by the
petitioners, a usurpation that was effected without their knowledge and without their consent.” Id.
at 511. In the Supreme Court’s view, the use of evidence obtained through such a physical invasion
without a warrant amounted to a violation of the Fourth Amendment. Id. at 512.
Olmstead—and later Silverman—took a narrow, literal view of what constitutes a Fourth
Amendment “search,” a view later rejected in Katz, 389 U.S. 347. In that seminal decision, the
Supreme Court first articulated the reasonable-expectation-of-privacy inquiry. Building on Boyd’s
recognition of “the privacies of life,” 116 U.S. at 630, the Supreme Court held that “the Fourth
Amendment protects people—and not simply ‘areas’—against unreasonable searches and
seizures,” and that its protections therefore “cannot turn upon the presence or absence of a physical
intrusion into any given enclosure,” Katz, 389 U.S. at 353. Katz effectively entombed Fourth
Amendment property-based inquiries.
Forty-five years after Katz, however, the Supreme Court once again revived a property-
based Fourth Amendment inquiry in Jones. There, law enforcement agents placed a GPS tracking
device onto the undercarriage of the defendant’s Jeep while it was in a public parking lot. 565 U.S.

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at 403. They proceeded to monitor the defendant’s location for nearly a month without a warrant,
collecting location data that eventually supported numerous drug trafficking charges. Id. The
Supreme Court began its analysis by describing the government’s installation of the GPS device
as a “physical intrusion” that “would have been considered a ‘search’ within the meaning of the
Fourth Amendment when it was adopted.” Id. at 404–05.
Writing for the majority, Justice Scalia relied on the Fourth Amendment’s “close
connection to property,” and common-law trespass principles in particular, to dismiss the
government’s contention that the protections of the Fourth Amendment turn exclusively on “the
Katz formulation.” Id. at 405–06. Because the Fourth Amendment “embod[ies] a particular
concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it
enumerates,” the Supreme Court held that, “[b]y attaching the device to the Jeep, officers
encroached on a protected area” and, in doing so, they had conducted a “‘search’ within the
meaning of the Fourth Amendment when it was adopted.” Id. at 404–06, 410. The majority
described the facts in Jones as a “classic trespassory search.” Id. at 412–13.
Yet, once again, the Supreme Court’s notion of “a classic trespassory search” became less
clear in the cases that followed. In an opinion also authored by Justice Scalia, the Supreme Court
held in Jardines that police officers’ and their forensic narcotics dog’s “physical intrusion of a
constitutionally protected area”—to wit, the curtilage of the defendant’s home—without explicit
or implicit permission amounted to a Fourth Amendment “search.” 569 U.S. at 5–8, 11 (citation
omitted). Curiously, the Supreme Court’s opinion does not expressly reference the common-law
trespass principles it surveyed extensively in Jones just a year earlier. The closest the Supreme
Court comes in Jardines to referencing those principles is in describing the officers’ and dog’s
entry into the curtilage as an “unlicensed physical intrusion.” Id. at 7.
Finally, in Grady v. North Carolina, the Supreme Court extrapolated on Jones to address
Grady’s mandatory enrollment in a monitoring program requiring him to wear a tracking device
for the remainder of his life for a prior sex offense for which he had already completed his sentence.
575 U.S. 306, 307 (2015) (per curiam). Adding to its semantic confusion, the Supreme Court
described the State’s placement of the device on Grady’s body as “physically intruding,” even
though there was no intrusion in the literal sense. Id. at 310. Nevertheless, the Supreme Court held,
unanimously, that “a State . . . conducts a search when it attaches a device to a person’s body,
without consent, for the purpose of tracking that individual’s movements.” Id. at 309.

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In truth, Jones, Jardines, and Grady raised more questions than they answered. There is
disagreement over whether Jones inaugurated a “physical intrusion” test or a broader inquiry
grounded in the common-law trespass doctrine. Orin S. Kerr, The Two Tests of Search Law: What
Is the Jones Test, and What Does That Say About Katz?, 103 Wash. U. L. Rev. 309, 311–12 (2025).
A number of state and federal courts, including this Court, look to common‑law trespass to
determine whether a Fourth Amendment “search” of “effects,” such as vehicles and other personal
property, has occurred. See Dorff, 171 Idaho at 823–28, 526 P.3d at 993–98 (majority opinion);
United States v. Richmond, 915 F.3d 352, 358 (5th Cir. 2019) (holding police officer’s “‘relatively
minor’ act of tapping tires” to detect drugs during a traffic stop is a trespass and thus a search);
Taylor v. City of Saginaw, 922 F.3d 328, 332–33 (6th Cir. 2019) (holding parking enforcement
officers’ use of chalk to mark tires of parked vehicles was a search because it constituted a
common-law trespass for the purpose of obtaining information); Ackerman, 831 F.3d at 1308
(holding public entity’s examination of defendant’s email was akin to a trespass to chattel
amounting to a Fourth Amendment search); State v. Jean, 407 P.3d 524, 528–29 (Ariz. 2018)
(relying on Restatement (Second) of Torts §§ 216, 217 (1967) to conclude that the defendant
lacked standing to challenge the State’s placement of a tracking device on a vehicle in which he
was merely a passenger, because he was neither the vehicle’s owner nor its bailee and therefore
there could be no “common law trespass as to him”); State v. Organ, 726 S.W.3d 346, 350, 362
(Tex. Crim. App. 2025) (holding police dog effected common law trespass amounting to Fourth
Amendment search when it “leaned against [defendant’s] car with [its] front paws, and stuck [its]
nose through the open window”). But see State v. Bauler, 8 N.W.3d 892, 906 (Iowa 2024) (holding
common-law trespass principles do not apply against dog sniffs because “applying common law
concepts derived from human interactions in an anthropomorphic manner to dog sniffs makes no
sense”).
And numerous scholars agree that common-law trespass offers a useful rubric for
determining whether a Fourth Amendment search has occurred. E.g., Sacharoff, supra, 81 Tenn.
L. Rev. at 898 (arguing that “contemporary trespass principles better capture . . . evolving social
arrangements while still furthering the same general goal the founders sought: to preserve certain
areas from government intrusion and surveillance”); Danielle D’Onfro & Daniel Epps, The Fourth
Amendment and General Law, 132 Yale L. J. 910, 956–57 (2023) (“Trespass—unlawful
interference with another’s right to possession—is the original common-law touchstone for the

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Fourth Amendment.”); Arnold H. Loewy, United States v. Jones: Return to Trespass—Good News
or Bad, 82 Miss. L.J. 879, 884 (2013) (“[I]t is clear that once there is a trespass, the amorphous
privacy question does not even have to be reached. I regard this as salutary.”). But see, e.g.,
Nicholas A. Kahn-Fogel, The Benefits of the Fourth Amendment’s Property-Rights Baseline, 70
Vill. L. Rev. 219, 233 (2025) (“[A] property approach requiring an actual, legal trespass . . . as a
prerequisite for government conduct to qualify as a Fourth Amendment search would produce
absurd results that the [Supreme] Court could not have intended.”); Kerr, supra, 103 Wash. U. L.
Rev. at 334–35 (“By relying exclusively on a physical intrusion standard, and by never using the
term ‘trespass,’ Jardines and Grady make clear that the Jones test is the Silverman physical
penetration rule.”).
The concurrence breezes past this turbulent history of Fourth Amendment “search” cases
and the legal academy’s rich debate about their meaning. It approaches the physical intrusion
standard without acknowledging that this body of law is largely unsettled, with sound arguments
both for and against the physical intrusion standard. The “murky and uncertain legal waters” it
cites arise chiefly from this ongoing debate, see Dorff, 171 Idaho at 829, 526 P.3d at 999 (Moeller,
J., dissenting), and from the Supreme Court’s reluctance to resolve it—not from this Court’s use
of trespass law to define a Fourth Amendment “search” in certain contexts, as other courts have
done.
The concurrence does acknowledge that applying Dorff in this case leads to the conclusion
we all agree is correct: on these facts, Pendleton did not suffer a violation of her Fourth
Amendment rights. At bottom, then, the concurrence’s critique is purely academic and has no
meaningful bearing on the outcome of Fourth Amendment litigation in Idaho courts. As discussed,
Dorff’s adoption of trespass‑based principles is a position endorsed by courts and scholars alike.
Thus, it is hardly “manifestly wrong.” State v. Delling, 152 Idaho 122, 131, 267 P.3d 709, 718
(2011). And nothing suggests that Dorff “has proven over time to be unjust or unwise” or that
“overruling it is necessary to vindicate plain, obvious principles of law and remedy continued
injustice.” Id.
II.
For my part, I read Jones as adopting a Fourth Amendment “search” inquiry grounded in
the common-law trespass doctrine—an inquiry that Jardines, Grady, and this Court’s decision in
Dorff continued to follow. In addition to adhering to the decisions of the Supreme Court, the

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approach adopted in Dorff is consistent, as a matter of first principles, with the text and history of
the Fourth Amendment.
In State v. Randall, we held that a drug‑detection dog’s entry into the interior of the
defendant’s vehicle to sniff for illegal drugs amounted to an “search” because it was a trespass—
an entry made without the defendant’s consent—conducted for the purpose of obtaining
information. 169 Idaho 358, 368–69, 496 P.3d 844, 854–55 (2021) (The dog’s “entry was a
trespass.”). Similarly, in State v. Howard, we held that a drug dog’s insertion of its nose through
an open car window—again without the defendant’s consent—was also a “search” because it
violated the defendant’s right to exclude no less than the intrusion in Randall. 169 Idaho 379, 382,
496 P.3d 865, 868 (2021) (“[T]he entry was a trespass because it was without Howard’s express
or implied consent.”). Randall and Howard stand for the proposition that a police dog’s trespass
against a defendant’s vehicle for the purpose of making a drug‑detecting sniff is a “search.”
My concurring colleagues maintain that Dorff, 171 Idaho 818, 526 P.3d 988 (majority
opinion), represents a departure from this rule. In their view, Randall and Howard adopt an
“intrusion” standard—despite both decisions’ express references to “trespass,” Randall, 169 Idaho
at 368–69, 496 P.3d at 854–55; Howard, 169 Idaho at 382, 469 P.3d at 868—which they attribute
to Jones, Jardines, and Grady. By the concurrence’s telling, Dorff went astray in relying on the
common-law trespass doctrine to analyze the more nuanced scenario in which the police dog
“plant[ed] his front paws to stand up on the door and window as he sniffed the vehicle’s upper
seams.” 171 Idaho at 821, 526 P.3d at 991. As noted, I recognize that there is much debate
surrounding the characterization of Jones and its progeny as cases about trespass law or a strict
physical intrusion standard. But I continue to believe that these cases are fundamentally about
trespass principles and Dorff’s adoption of the common law trespass test was therefore the wiser
course.
Start with Jones. The concurrence contends that “the Jones test is best understood as an
intrusion standard applicable when there is an actual intrusion of the interior.” Moeller, J.,
Concurring Op. at 11. But the device at issue in Jones was attached to the exterior of the
defendant’s vehicle, just as according to the concurrence “the drug dog in Dorff and in this case
only made contact with the exterior of the vehicles.” Alternatively, the concurrence posits that
Jones applies when “the government physically attaches something to the surface of one’s person,
house, paper, or effect,” a better statement of Jones’ holding, to be sure, but one that does not

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support what the concurrence previously insisted was a strict “intrusion standard.” To the contrary,
“physically attaching” an object to the exterior surface of a car sounds quite like a trespass to
chattel. Cf. Dorff, 171 Idaho at 821, 825–28, at 991, 995–98 (holding that drug dog “intermeddled”
with defendant’s vehicle when it “jumped onto the driver side door and window, planted two of
its paws, and sniffed the vehicle's upper seams.”); see also 75 Am. Jur. 2d Trespass § 13 (2026)
(explaining trespass to chattel arises from “[a]ny unlawful interference, however slight, with
another’s enjoyment of personal property.” (emphasis added)).
Grady presents the same problem for the concurrence. It treats Grady as yet another
Supreme Court case adopting a “physical intrusion” standard. But in Grady, the government’s
monitoring device did not “physically intrude.” Instead, much like the device placed on the
exterior of the Jeep in Jones, the government’s monitoring device was placed on the exterior of
Grady’s body. But see Maryland v. King, 569 U.S. 435, 446 (2013) (holding that the state’s buccal
swab of a person’s cheek to obtain a DNA sample is a Fourth Amendment “search”).
Furthermore, while Jardines might be a closer call, its focus on the license—actual or
implied—that the officers had to enter the curtilage of Jardines’ home, a concept intrinsically
related to trespass of property, indicates to me that the case was largely decided on common-law
trespass principles. See 569 U.S. at 7 (“Since the officers’ investigation took place in a
constitutionally protected area, we turn to the question of whether it was accomplished through an
unlicensed physical intrusion.”); see also Sacharoff, supra, at 891–92 (“[T]he Court assessed not
simply whether the police had physically intruded, but whether they had done so without the
owner’s permission—a trespass inquiry.” (footnote omitted)).
In short, I do not find support for a physical intrusion rule in these cases. Rather, it is
apparent to me that Jones, Jardines, and Grady expressly or impliedly rely on the common-law
trespass doctrine to determine whether a Fourth Amendment “search” has occurred. I do not deny
that the government’s physical intrusion into a constitutionally protected area can constitute a
“search” under the Fourth Amendment; the point is that a “classic trespassory search” is not limited
to physical intrusion. Jones and Grady teach that other forms of trespass can qualify.
What is more, I take the view that using the common-law trespass doctrine in the context
of Fourth Amendment search jurisprudence is consistent with the text and history of that
Amendment. Its plain language reveals an intent to “secure” “persons” and property, see U.S.
Const. amend. IV, against specific government-inflicted torts, namely trespass to land, trespass to

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chattel, and battery or false imprisonment. Sacharoff, supra, at 893. Broadly speaking, only when
the government obtains a warrant in the manner prescribed by the Fourth Amendment’s Warrant
Clause may it search or seize persons and property. U.S. Const. amend. IV. At the founding, the
purpose of a warrant was to provide immunity to government officials who conducted searches
and seizures and were subsequently sued by the “citizen target” under common‑law trespass. Akhil
Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757, 772, 774, 776–79, 786–
87 (1994); D’Onfro & Epps, supra, at 944; Sacharoff, supra, at 895–98.
Against that historical backdrop, it stands to reason that trespass plays a role in the
construction of the Fourth Amendment. I am therefore unwilling to adopt an approach that would
set Dorff aside and, as a consequence, divorce this Court’s Fourth Amendment jurisprudence from
the Amendment’s original meaning. Dorff’s reliance on the common law-trespass doctrine in the
construction of the Fourth Amendment is consistent with that amendment’s text, history, and
Supreme Court precedent. Until the Supreme Court chooses to revisit its holding in Jones, I cannot
endorse overruling Dorff on the basis of property law nuances that, however one resolves them,
have no meaningful bearing on the disposition of the cases we adjudicate.
Justice ZAHN CONCURS.

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