Here, the search involved the physical touching of Schmidt’s Hummer in a public parking lot. The search, however, did not damage the Hummer in any way. Accordingly, this Court has to make two determinations when evaluating whether a Fourth Amendment search occurred:

• Does the trespass-trigger for Fourth Amendment coverage extend to a trespass to chattels?

• If so, was the physical touching a trespass to chattels even though the touching did not harm or otherwise affect the Hummer?

Jones—which addressed a trespass against a car—settles that a trespass to chattles can constitute a Fourth Amendment search regardless of whether there is a reasonable expectation of privacy. See 565 U.S. at 410 (observing that officers “trespassorily inserted” the GPS tracker on the Jeep); see also id. at 419 & n.2 (Alito, J., concurring) (implying Court was concluding that search was a trespass to chattles). Thus, just as a trespass to land can constitute a Fourth Amendment search, a trespass to chattles may as well. See, e.g., United States v. Ackerman, 831 F.3d 1292, 1307-08 (10th Cir. 2016). And there is no question that an automobile—unlike an open field—is protected by the Fourth Amendment: an automobile is “an effect as that term is used” in the Fourth Amendment. Jones, 565 U.S. at 404.4

But was this a trespass to chattles? That is a trickier issue. As Justice Alito’s Jones concurrence explained, the elements of the tort have changed since the founding. “At common law, a suit for trespass to chattels could be maintained if there was a violation of the dignitary interest in the inviolability of chattels.” 565 U.S. at 419 & n.2 (Alito, J., concurring) (internal quotation marks omitted). Meanwhile, “today there must be some actual damage to the chattel before the action can be maintained.” Id. (internal quotation marks omitted). So the choice of a particular understanding of trespass can be outcome determinative when applying Jones if a search does not damage or otherwise affect a particular chattel.

The Court concludes that it should follow the view that an officer need not cause damage before committing a trespass to chattels. Not only is that the view of the Second Restatement of Torts, see Restatement (Second) of Torts § 217,5 but it also has the added advantage of not making the scope of the Fourth Amendment turn on whether someone scratches the paint.