Many thanks to Danielle and the good folks at Co-Op for inviting me back and for again tolerating my slow starts. I am late to the Jones party, but nevertheless cannot pass on the opportunity to say a few things. Foremost, I think I represent the views of criminal procedure professors nationwide when I thank the Court most sincerely for its timing. A couple of terms back the Court issued its opinion in Gant “clarifying” Belton smack in the middle of reading week, which was difficult timing to say the least. More common practice still is the Court’s regular habit of issuing the game-changers in May and June, which requires us to write long mails to students explaining to them how much of what we said to them over the past semester ought be wiped from their memories and to make decisions about whether to give credit on exams for answers that were right when written, answers that were wrong when written but are now right, both, or neither. By contrast, the timing of Jones could not have been better for most of us, who were set to teach the two-prong test from Harlan’s Katz concurrence that week. There was and continues to be some adjustment in what we teach about the Fourth Amendment, but at least it is all timely. So . . . Thanks Your Honors, very considerate indeed!
It is tempting to jump into the substantive conversation about whether Jones is good, bad, neutral, or a complete enigma for the Fourth Amendment, but I will demur for now, mainly because I cannot find sure footing for anything beyond the obvious: Trespass is back baby! (If it was ever gone). Instead, I’d like to wonder out loud about one of the adjustments I’m facing in class as we turn to our discussions of the exclusionary rule: What, if anything, does Jones mean for remedies. The issue was not briefed or argued in Jones, and each of the written opinions seems to assume without comment that the remedy provided by the district court—exclusion—was appropriate. Howard Slugh wrote a bit about this over at the National Review, but there is certainly much more to say.