Petition for Writ of Certiorari — Frank Thompson, Petitioner v. Carl Wilson, Commissioner, Maine Department of Marine Resources

No.

In the Supreme Court of the United States

_________

FRANK THOMPSON,

v.

Petitioner,

CARL WILSON, IN HIS OFFICIAL CAPACITY AS

COMMISSIONER, MAINE DEPARTMENT

OF MARINE RESOURCES,

Respondent.

_________

On Petition For A Writ Of Certiorari

To The United States Court Of Appeals

For The First Circuit

_________

PETITION FOR A WRIT OF CERTIORARI

_________

FRANK D. GARRISON

MATTHEW GILLIAM

DAVIS VAN INWEGEN

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

MARK MILLER

Counsel of Record

Pacific Legal Foundation

4440 PGA Blvd., Suite 307

Palm Beach Gardens, FL

33410

(916) 503-9001

Mark@pacificlegal.org

MARK PINKERT

Holtzman Vogel

2333 Ponce de Leon Blvd.

Suite 600

Coral Gables, FL 33134

Counsel for Petitioner

QUESTIONS PRESENTED

Maine requires all federally-permitted lobstermen,

including Petitioner Frank Thompson, to install a

GPS tracker on their fishing boats and submit to 24/7

government surveillance as a condition of keeping

their fishing license. The First Circuit held that the

Fourth Amendment’s administrative search doctrine

authorizes Maine’s trespass—even when lobstermen

are not using their private fishing boats for

commercial purposes. In doing so, it concluded, in

conflict with the Sixth and Ninth Circuits, that Fourth

Amendment trespassory protections under United

States v. Jones, 565 U.S. 400 (2012), apply to criminal

cases only, not to commercial cases.

The questions presented are:

1. Whether Maine’s requirement that lobstermen

place a GPS tracking device on their private

fishing vessels and submit to 24/7 surveillance

constitutes an unreasonable trespassory search

in violation of the Fourth Amendment?

2. Whether

courts

must

evaluate

the

reasonableness of a warrantless administrative

search based on the Fourth Amendment’s

protections against government trespass, and not

solely on a business owner’s reasonable

expectations of privacy?

ii

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT

Petitioner Frank Thompson is a lifelong lobsterman

in Maine and was the plaintiff in the district court and

appellant at the First Circuit. Joel Strout, Jason Lord,

Christopher Smith, and Jack Cunningham were all

individual lobstermen plaintiffs in the district court,

but they were not appellants at the First Circuit and

are not part of this petition.

Respondent Carl Wilson, in his official capacity as

the Commissioner of the Maine Department of Marine

Resources, was the appellee at the First Circuit. He

was substituted for Patrick Keliher, the defendant at

the district court, upon taking office as Commissioner

after Mr. Keliher’s retirement.

STATEMENT OF RELATED CASES

The proceedings in federal district and appellate

courts identified below are directly related to the

above-captioned case in this Court under Rule

14.1(b)(iii):

Thompson v. Keliher, No. 1:24–cv–00001–JAW (D.

Me. Nov. 21, 2024).

Thompson v. Wilson, No. 25–1007 (1st Cir. Nov. 18,

2025).

iii

TABLE OF CONTENTS

Petition for a writ of certiorari ................................... 1

Opinions below ............................................................ 1

Jurisdiction ................................................................. 1

Constitutional and regulatory provisions involved .... 1

Introduction ................................................................ 2

Statement of the case ................................................. 5

A. Factual background .................................... 5

B. Procedural history ...................................... 8

1. District Court proceedings .................... 8

2. First Circuit proceedings .................... 10

C. The basic legal framework ........................ 12

Reasons for granting the petition ............................ 16

I.

The Court should resolve the lower-court

conflict over whether the government’s

warrantless trespass on private property

outside of commercial areas and hours

violates the Fourth Amendment .................. 16

A. The Ninth and Sixth Circuits apply the

Fourth Amendment’s common-law trespass

test when the government trespasses on

private property outside of commercial

areas and hours ........................................ 17

B. The First and Tenth Circuits rejected the

argument that the Fourth Amendment’s

common-law trespass test determines the

reasonableness of the government’s

physical trespasses on private property

outside of commercial areas and hours.... 20

iv

II.

The Court should resolve a circuit split on

whether the reasonableness of a warrantless

administrative search under the Burger Test

depends in part on trespass to property

protections or solely on reasonable

expectations of privacy................................... 22

A. This Court has not yet answered whether

Jones’s trespass to property protections

apply under Burger ................................... 22

B. Circuits are split over whether to apply

Jones’s trespass to property protections to

administrative searches in closely

regulated industries ................................. 25

1. The Ninth Circuit applies the Jones

and Katz tests to administrative

searches ............................................... 25

2. The Sixth Circuit applies the

Jones test in civil searches .................. 27

3. The First Circuit only applied the Katz

test to an administrative search ......... 28

III. Certiorari should be granted because

this case is a clean vehicle to resolve a

recurring issue of nationwide

importance...................................................... 30

A. The issue of warrantless administrative

searches is ongoing because many other

states have adopted similar search

authorizations ........................................... 30

B. The issue of warrantless administrative

searches is important because it diverts

from the Constitution’s protections

and subjects large swaths of property

and businesses to unmitigated

surveillance ............................................... 32

v

Conclusion ................................................................. 34

APPENDIX

U.S. Court of Appeals for the First Circuit,

No. 25-1007, Opinion,

filed November 18, 2025 ....................................... 1a

U.S. District Court, District of Maine,

No. 1:24-cv-00001-JAW,

Order on Motion to Dismiss and

Motion for Preliminary Injunction,

filed November 21, 2024 ..................................... 31a

U.S. Const. amend. IV .......................................... 135a

Atlantic States Marine Fisheries Commission

Addendum XXIX to Amendment 3 to the

American Lobster Fishery Management Plan;

Addendum IV to the Jonah Crab Fishery

Management Plan, March 2022 ....................... 136a

State of Maine Department of Marine Resources

Chapter 25: Lobster and Crab Regulations,

Chapter 25.98 Electronic Tracking Requirements

for Federally Permitted Lobster and Jonah

Crab License Holders, December 15, 2023 ...... 150a

U.S. District Court, District of Maine,

No. 1:24-cv-00001-JAW,

Complaint for Declaratory and

Injunctive Relief, filed January 2, 2024........... 156a

U.S. District Court, District of Maine,

No. 1:24-cv-00001-JAW, Declaration of

Frank Thompson, Exhibit B to Motion

for Preliminary Injunction,

filed January 12, 2024 ...................................... 190a

vi

State of Maine Department of Marine Resources

Notice of Agency Rule-Making Adoption,

Chapter 25.98 Electronic Tracking Requirements

for Federally Permitted Lobster and Jonah

Crab License Holders, dated March 1, 2024.... 196a

vii

TABLE OF AUTHORITIES

Cases:

Carpenter v. United States,

585 U.S. 296 (2018) ....................... 11, 12-15, 22, 24

Case v. Montana,

607 U.S. ___, slip op. (Jan. 14, 2026) ..................... 4

Chatrie v. United States,

No. 25-112 (U.S. 2025) ........................................... 4

City of Los Angeles v. Patel,

576 U.S. 409 (2015) .................................. 15, 25, 32

Entick v. Carrington,

95 Eng. Rep. 807 (C.P. 1765) ............................... 19

Golden Day Schools, Inc. v. Pirillo,

118 F.Supp.2d 1037 (C.D. Cal. 2000) .................. 18

Hotop v. City of San Jose,

982 F.3d 710 (9th Cir. 2020) ................................ 26

Johnson v. Smith,

104 F.4th 153 (10th Cir. 2024) ................... 3, 20-21

Katz v. United States,

389 U.S. 347 (1967) .......................... 3, 13-15, 22-28

Lesser v. Espy,

34 F.3d 1301 (7th Cir. 1994) ................................ 33

Loper Bright Enters. v. Raimondo,

603 U.S. 369 (2024) ................................................ 5

Lyall v. City of L.A.,

807 F.3d 1178 (9th Cir. 2015) .............................. 26

Marshall v. Barlow’s, Inc.,

436 U.S. 307 (1978) ........................................ 13, 32

Massachusetts Lobstermen’s Ass’n v.

Raimondo,

141 S.Ct. 979 (2021) ............................................... 5

viii

Mexican Gulf Fishing Co. v.

Dep’t of Com.,

60 F.4th 956 (5th Cir. 2023) ................................ 31

New York v. Burger,

482 U.S. 691 (1987) ............. 10-16, 20, 22-24, 28-29

Newman v. Moore,

743 F.Supp.3d 62 (D.D.C. 2024) .......................... 27

Owner-Operator Indep. Drivers Ass’n v.

U.S. Dep’t of Transp.,

840 F.3d 879 (7th Cir. 2016) .......................... 21, 28

Patel v. City of Los Angeles,

738 F.3d 1058 (9th Cir. 2013) ......... 3, 15, 21, 25-27

People v. Firstenberg,

92 Cal.App.3d 570 (1979) ..................................... 32

People v. Pashigian,

150 Mich. App. 97 (1986) ..................................... 32

Pollard v. Cockrell,

578 F.2d 1002 (5th Cir. 1978) .............................. 33

Richards v. Newsom,

No. 8:23-cv-02413-JVS-KES,

2024 WL 4812537

(C.D. Cal. Oct. 16, 2024) ...................................... 17

Rush v. Obledo,

756 F.2d 713 (9th Cir. 1985) ...... 3, 15-18, 20-21, 33

State v. Miles,

160 Wash. 2d 236 (2007) ...................................... 18

Stogner v. Kentucky,

638 F.Supp. 1 (W.D. Ky. 1985) ....................... 32-33

Taylor v. City of Saginaw,

11 F.4th 483 (6th Cir. 2021) ........... 3, 15-16, 18, 27

Taylor v. City of Saginaw,

922 F.3d 328 (6th Cir. 2019) ................................ 27

ix

Taylor v. San Francisco Sheriff’s Dep’t,

No. 23-cv-04121-DMR,

2024 WL 2808650

(N.D. Cal. May 31, 2024) ..................................... 27

United States v. Gonsalves,

435 F.3d 64 (1st Cir. 2006) ............................. 32-33

United States v. Jones,

565 U.S. 400 (2012) ................ 3-4, 11-12, 14-15, 17,

19, 22-29, 33

United States v. Raub,

637 F.2d 1205 (9th Cir. 1980) .............................. 32

United States v. Sayonkon,

No. 16-cr-0265, 2017 WL 11426870

(D. Minn. Jan. 24, 2017) ...................................... 27

Verdun v. City of San Diego,

51 F.4th 1033 (9th Cir. 2022) .............................. 15

United States Constitution:

U.S. Const. amend. IV ... 1-4, 8-11, 13-17, 19-30, 32-33

Statutes:

16 U.S.C. § 5106 .................................................... 6, 31

28 U.S.C. § 1254(1) ..................................................... 1

7 Del. Admin. Code § 3755-4.0

(effective Mar. 11, 2024) ...................................... 31

N.H. Code Admin. R. Fis 612.01

(effective Feb. 21, 2024) ......................................... 31

N.J. Admin. Code § 7:25-14.16(a)(12)

(effective Mar. 8, 2024) ........................................ 31

x

Other Authorities:

10 Adams, John, The Works of

John Adams (C. Adams ed. 1856)) ...................... 13

13-188 C.M.R. Ch. 25, § 25.98 ...................................... 2

250-R.I. Code Regs. § 90-00-5.5.8

(effective Apr. 28, 2024)......................................... 31

322 Mass. Code Regs. § 7.11

(effective May 1, 2023) ......................................... 31

Dec. 27, 2019, Letter from

Commissioner Patrick Keliher to

Nat’l Marine Fisheries Service,

Maine Lobstermen’s Ass’n, Inc. v.

Nat’l Marine Fisheries Serv.,

No. 1:21-cv-02509 (D.D.C. 2022)............................ 7

Kerr, Orin, The Two Tests of Search Law:

What Is the Jones Test, and What

Does That Say About Katz?,

103 WASH. U. L. REV. 309 (2025) .......................... 24

Md. Code Regs. 08.02.08.10(G)

(effective Aug. 5, 2024) ......................................... 31

Otis, James, The Collected Political

Writings of James Otis

(Richard A. Samuelson ed.,

Liberty Fund 2015). ....................................... 12, 32

Plaintiff-Appellant’s Initial Brief,

Thompson v. Wilson, No. 25-1007

(1st Cir. Apr. 1, 2025).................................... 7, 9-12

Russell, Tobias & Scacchi, Mitchell,

Caught in a Trap: Tracking

Lobster Vessels 24/7 (Mar. 12, 2026),

https://tinyurl.com/uhkucrd3 ............................... 30

PETITION FOR A WRIT OF CERTIORARI

Petitioner Frank Thompson respectfully petitions for

a writ of certiorari to review the judgment of the U.S.

Court of Appeals for the First Circuit.

OPINIONS BELOW

The First Circuit’s decision is available at 159 F.4th

91 (1st Cir. 2025) and reprinted at App.1a.

The decision of the United States District Court for

the District of Maine is not reported but is available at

2024 WL 4851243 (D. Me. Nov. 21, 2024) and reprinted

at App.31a.

JURISDICTION

The First Circuit’s Judgment was entered on

November 18, 2025. App. 1a. On December 22, 2025,

Justice Jackson granted Petitioner’s application for an

extension of time within which to file a petition for a writ

of certiorari until March 19, 2026. This Court has

jurisdiction under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND REGULATORY

PROVISIONS INVOLVED

The Fourth Amendment to the U.S. Constitution

reads:

The right of the people to be secure in their

persons, houses, papers, and effects, against

unreasonable searches and seizures, shall not be

violated, and no Warrants shall issue, but upon

probable cause, supported by Oath or affirmation,

and particularly describing the place to be

searched, and the persons or things to be seized.

2

Pursuant to 13–188 C.M.R. Ch. 25, § 25.98, Maine

requires all federally permitted lobstermen to install a

GPS tracking device on their lobstering vessels and to

submit to 24/7 surveillance as a condition of keeping

their fishing licenses. App.150a-155a.

Under Section 3.1 of Addendum XXIX to the

American Lobster Fishery Management Plan, the

Atlantic States Marine Fisheries Commission

(“ASMFC”) required its member states, including

Maine, to adopt and enforce that requirement.

App.136a-149a.

INTRODUCTION

For Petitioner Frank Thompson, a fifth-generation

lobsterman, his business in the lobstering industry is

his family’s livelihood. But Thompson, like many lobstermen, also uses his fishing boat for personal activities unrelated to lobstering. Maine requires Thompson and all other lobstermen to place a GPS tracking

device on their fishing boats, keep it there at all times,

and submit to government surveillance as a condition

of keeping their license. Maine tracks lobstermen’s

boats 24/7–even outside work areas and hours when

they are not using their boats for lobstering. This case

presents important Fourth Amendment questions

about trespass on and constant surveillance of private

property used for both commercial and noncommercial

purposes.

The First Circuit’s attempt to resolve these Fourth

Amendment questions deepened a split between the

Tenth Circuit and the Ninth and Sixth Circuits over

whether the reasonableness of the government’s

warrantless trespass on private property—outside of

commercial areas, hours, and operations—should be

judged under the Fourth Amendment’s core trespass-

3

to-property protections (in accordance with Jones), or

under an administrative search doctrine. Compare

App.14a-20a, 28a n.18, and Johnson v. Smith, 104

F.4th 153, 167 (10th Cir. 2024), with Rush v. Obledo,

756 F.2d 713 (9th Cir. 1985); Taylor v. City of

Saginaw, 11 F.4th 483, 487-90 (6th Cir. 2021) (Taylor

II). Some courts hold that the administrative search

doctrine displaces the Fourth Amendment’s

protection from trespass. Others hold that it does not.

The First Circuit also deepened a split with the

Ninth Circuit over whether the reasonableness determination under an administrative search test must be

guided by the Fourth Amendment’s trespass-to-property protections under Jones, or solely by business

owners’ “reasonable expectations of privacy” under

Katz. Compare App.24a-30a, 28a n.18, with Patel v.

City of Los Angeles, 738 F.3d 1058, 1061-65 (9th Cir.

2013) (Patel I) (en banc).

These Fourth Amendment questions warrant the

Court’s review. Had the First Circuit followed the

other federal courts’ approaches, it would have struck

down Maine’s requirement—that Thompson and

other lobstermen place a tracker on their boat and

submit to 24/7 government surveillance—as an unreasonable trespassory search of their private property.

The Court should also grant certiorari because this

case presents recurring issues of nationwide importance. Today, almost all businesses are heavily regulated. Thus, many individuals and small business

owners are susceptible to being considered part of

“closely regulated industries,” meaning they too can be

subjected to 24/7 surveillance—even when they are not

using their property for commercial purposes. This important issue will continue across the entire industry.

4

Not only are Maine’s lobstermen subject to this constant government surveillance, but, under ASMFC

regulations and federal laws, nine other member

states must also fall in line with the ASMFC directives or their state’s lobstermen will be prohibited

from fishing. Indeed, the ASMFC directive prompted

Maine to enact its rule.

***

As the panel’s decision below demonstrates,

Fourth Amendment doctrine in the lower courts has

lost its mooring from constitutional first principles

and drifted far asea. At bottom, this case gives the

Court the opportunity to continue reconnecting its

Fourth Amendment jurisprudence to original principles

as it did in Jones and to extend that seminal holding to

government trespasses ostensibly committed under the

administrative search doctrine.1 The First Circuit’s decision to judge the reasonableness of 24/7 government

searches of private property based on business owners’ reasonable expectations of privacy—not on their

core Fourth Amendment freedoms from trespass to

property—is precisely the kind of jurisprudential “miasma” that this Court should clear up. See Case v.

Montana, 607 U.S. ___, slip op. at 3 (Jan. 14, 2026) (Gorsuch, J., concurring) (citations omitted).

This Court should grant this petition to restore the

Fourth Amendment’s “sturdier” property protections,

1 This Court’s decision to grant cert in Chatrie v. United States,

No. 25-112, this Term reflects the need to resolve Fourth Amendment issues regarding the government’s execution of geofence warrants that allow it to identify and track cellphone users in particular

locations and particular times. This case gives the Court the opportunity to address Fourth Amendment doctrine and similar themes

when the government purports to carry out an “administrative

search.”

5

and resolve the growing split between the First, Sixth,

Ninth, and Tenth Circuits.

STATEMENT OF THE CASE

A. Factual Background

Frank Thompson has been lobstering off the coast of

Vinalhaven, Maine, for over 55 years. App.190a-191a.

Thompson and his wife, Jean, and their two sons, own

and operate the Fox Island Lobster Company, LLC, a

lobstering business based in Vinalhaven. App.191a. As

a fifth-generation lobsterman, Thompson and his family

have built their lives around the lobstering industry.

App.194a-195a.

Thompson’s business and the broader lobstering

industry have long grappled with federal and state

regulations governing the Nation’s fisheries. App.4a.2

Ten states, including Maine, exercise joint regulatory

authority over lobstering and other aquatic resources

through the ASMFC. App.4a, 136a. The ASMFC

creates fishery management plans (“FMPs”)

mandating that member state agencies, like the

Maine Department of Marine Resources, adopt rules

and enforce federal requirements to regulate those

aquatic resources. App.4a-5a.

The ASMFC amended its Lobster FMP in March

2022, requiring member states to promulgate rules

mandating that federally permitted lobstermen install

GPS electronic tracking devices on their fishing boats by

December 15, 2023, for conducting 24/7 surveillance of

the lobstermen. App.5a-6a. Federal law mandates

2 See Loper Bright Enters. v. Raimondo, 603 U.S. 369, 380-82

(2024); Massachusetts Lobstermen’s Ass’n v. Raimondo, 141 S.Ct.

979, 980 (2021) (Roberts, J., concurring in the denial of

certiorari).

6

that ASMFC member states implement similar rules,

or else the Secretary of Commerce may impose a

moratorium on fishing in that state’s waters. 16

U.S.C. § 5106.

Following the ASMFC’s mandate, on September 13,

2023, the Maine Department of Marine Resource

(“MDMR”) issued a new rule requiring all federally permitted lobstermen to install the Particle TrackerOne—

a GPS tracking device manufactured in China and distributed by Particle, and have them fully operational on

their boats as a condition of keeping their permits.

App.6a-7a, 49a-50a.3 Maine prohibits the lobstermen

from ever removing the device. App.42a, 46a-48a.

Under the MDMR Rule, Maine monitors all the

lobstermen’s movements by using this GPS tracker to

collect their boats’ time and position (longitude and

latitude within 100 meters), 24 hours per day, 7 days a

week on a minute-by-minute basis while the vessel is

moving, and every six hours when the vessel is moored

or docked. App.6a-7a, 42a, 46a-48a, 74a, 173a-174a;

App.192a; (Dist. Ct. Doc. No. 1-3 at 1). The GPS tracker

is Bluetooth and Wi-Fi compatible and can collect audio

information aboard the boat. App.50a, 181a, 187a,

194a.

Thompson, like many other Maine lobstermen,

regularly uses his lobster boat for personal activities

unrelated to lobstering. App.191a, 210a, 217a. Not only

To be sure, Maine separately asserted reasons why it was

imposing the GPS tracking requirement. Maine justified the GPS

tracking requirement based on its purported need for lobster

harvesting data (i.e., the “spatial and temporal data” related to

where and when Maine lobstermen had fished for and retrieved

lobsters). App.219a. Notwithstanding those justifications, the

ASMFC requires Maine and other member states to adopt and

enforce the requirement as a matter of federal law.

3

7

does he use his vessel for recreational purposes, like

taking day trips with his family, but Thompson also

uses his boat for emergency search and rescue

operations, such as transporting residents from the

island of Vinalhaven to the mainland when they need

emergency treatment. Thompson once transported his

own daughter-in-law to the mainland to give birth to his

granddaughter.

App.49a, 180a, 191a.

PlaintiffAppellant’s Initial Brief at 8, Thompson v. Wilson, 159

F.4th 91 (1st Cir. 2025) (No. 25-1007).

Maine is always tracking Thompson’s boating activities at the federal government’s behest—whether he is

lobstering or not—including when he is only using his

boat for personal purposes. App.42a, 46a-49a. And

Maine is doing so without a warrant or pre-compliance

review. Plaintiff-Appellant’s Initial Brief at 4, 11, 13,

Thompson v. Wilson, 159 F.4th 91 (No. 25-1007).

Maine justified the mandatory GPS tracker rule by

claiming that the tracker would extract data with better resolution than the spatial data already provided

through harvester reports. App.218a-219a.4 Thompson

has substantial property and privacy interests in not

4 Before adopting these regulations,

Maine itself proclaimed

that the lobster fishery “has been a model of conservation, not

only in the management of the lobster resource, but also in its

two-decade participation in regulations aimed at protecting large

whales.” Pls.’ Opp’n to Defs.’ Mot. to Dismiss (Dist. Ct. Doc. No.

24, at 8) (citing Dec. 27, 2019, Ltr. from Commissioner Patrick

Keliher to NMFS at 1, available at Dist. Ct. Doc. No. 61-1 at 19,

Maine Lobstermen’s Ass’n, Inc. v. Nat’l Marine Fisheries Serv.,

No. 1:21-cv-02509 (D.D.C. 2022)). The ASMFC had previously

imposed a 2018 regulation requiring lobstermen “to self-report” the

same data that the GPS tracker would extract. App.41a-42a, 110a111a, 140a, 174a, 205a-207a, 213a, 215a.

8

being tracked. His decisions concerning the movements of his fishing vessel and the placement of his

traps are the result of hard work and knowledge

passed down through his family over many decades.

App.194a-195a. In the context of the lobster industry,

this knowledge is, in every sense of the term, the

equivalent of a proprietary trade secret having great

monetary value. App.194a-195a, 213a. For Thompson, it is essential that his trip information remain

confidential so that he can retain an important business advantage. Ibid.

During the MDMR proposed rulemaking’s notice

and comment period, a number of Maine lobstermen

came forward and questioned the new tracking

requirement’s constitutionality (App.209a, 213a),

with several observing that Maine’s GPS surveillance

requirement treats them like criminals. App.209a,

217a. Lobstermen who have been working in the

profession their entire lives objected that Maine’s

tightening regulatory burdens threatened their

family’s continued ability to make a living in an

industry that is “struggling to survive.” App.205a210a, 214a-217a. If Thompson does not comply with

Maine’s GPS tracking requirement, he will face

sanctions, including fines and the loss of his federal

lobstering license. App.6a-7a & n.4, 78a-79a, 132a133a, 193a-194a.

Meanwhile, mandatory data

collection and accompanying enforcement actions

threaten Thompson’s Fourth Amendment rights and his

business operations. App.194a.

B. Procedural History

1. District Court Proceedings

In January 2024, after the MDMR Rule went into

effect, Thompson and a group of lobstermen sued the

9

Commissioner in his official capacity in the United

States District Court for the District of Maine.5 The suit

sought to enjoin Maine’s enforcement of its GPS

tracking requirement and to have it declared

unconstitutional under the Fourth Amendment.6

App.3a, 32a, 156a, 160a, 182a-183a, 188a-189a.

Thompson alleged that Maine’s GPS tracking

requirement constitutes an unreasonable trespassory

search and goes far beyond what is necessary to

accomplish MDMR’s objectives because of its

warrantless entry upon his property and its around-theclock tracking of lobstermen’s boats regardless of the

commercial or personal nature of their activities.

App.53a-56a, 188a-189a.

Maine moved to dismiss Thompson’s Fourth

Amendment claim. App.8a, 33a. On November 21,

2024, the district court granted Maine’s motion and

dismissed Thompson’s case. App.7a-8a, 31a-134a.

During district court proceedings, Maine conceded that

the MDMR Rule’s GPS tracking requirement

constituted a Fourth Amendment search, so the court’s

decision focused on the requirement’s reasonableness.

App.102a-103a n.18 (citing Def. Mot. to Dismiss, Dist.

Ct. Doc. No. 23 at 12 n.16).

5 During district court proceedings Patrick Keliher was

MDMR Commissioner.

Carl Wilson was named Acting

Commissioner as of February 26, 2025, replacing Keliher.

Wilson has continued in his role as MDMR Commissioner from

appellate proceedings through the present. App.7a & n.7;

Plaintiff-Appellant’s Initial Brief at 1 n.1, Thompson v. Wilson,

159 F.4th 91 (No. 25-1007).

6 Thompson brought additional claims at the district court, but

he only appealed the Fourth Amendment violation to the First

Circuit. App.7a-8a & n.8, 53a-54a.

10

The district court found that “[t]he MDMR Rule

contemplates a constant search of each licensed lobster

boat in the entire lobstering fleet. The data collection

under the MDMR Rule is vastly different in kind and

intensity to past MDMR practice.” App.121a. The court

concluded that “[t]he degree of state intrusion would be

inimical to the restraint on government guaranteed by

the Fourth Amendment but for the Burger exception for

administrative searches of a closely regulated industry.”

App.120a. The court felt itself bound by precedent, but

“encourage[d] the lobstermen to appeal [its] decision . . .

for an authoritative ruling.” App.32a. The court

emphasized that “this case raises significant Fourth

Amendment issues” that “should be presented to the

First Circuit on review.” App. 3a, 32a, 125a.

2. First Circuit Proceedings

On December 19, 2024, Thompson filed a timely

notice of appeal.7 Dist. Ct. Doc. No. 35. The First

Circuit affirmed dismissal, acknowledging Maine’s

concession that the GPS tracking requirement

constitutes an “administrative search,” App.8a, but

rejecting Thompson’s arguments that the MDMR Rule’s

GPS tracking requirement constitutes an unreasonable

trespassory search of property in violation of the Fourth

Amendment. App.3a, 14a-30a; Plaintiff-Appellant’s

Initial Brief at 1-4, 11-13, 14-34, Thompson v. Wilson,

159 F.4th 91 (No. 25-1007).

First, Thompson argued that Maine’s requirement

for the lobstermen to place GPS trackers on their boats

and keep them for around-the-clock surveillance

constitutes an unreasonable trespassory search

7 Of the lobstermen who were the original plaintiffs at the dis-

trict court, only Frank Thompson appealed. App.7a & n.6.

11

unrelated to commercial lobstering, and violated the

Fourth Amendment’s fundamental protections against

warrantless trespass.

App.14a-15a; PlaintiffAppellant’s Initial Brief at 14-25, Thompson v. Wilson,

159 F.4th 91 (No. 25-1007). For such trespasses to

private property, Thompson argued that Maine’s GPS

tracking

requirement

must

be

judged

for

reasonableness under the Fourth Amendment’s core

protections from trespass (in accordance with

Carpenter, 585 U.S. 296 (2018), and United States v.

Jones, 565 U.S. 400 (2012)), not the Burger

administrative search test.

Plaintiff-Appellant’s

Initial Brief at 14-25, Thompson v. Wilson, 159 F.4th

91 (No. 25-1007).

The First Circuit rejected Thompson’s arguments,

holding that “[b]ecause the Burger test applies to

searches of closely-regulated industries, which

necessarily have a reduced expectation of privacy . . . the

privacy concerns and judicial balancing Thompson

requests come pre-baked into the Burger test, and need

not be repeated outside of its application.” App.18a-19a

(citing New York v. Burger, 482 U.S. 691, 702 (1987)).

Second, Thompson argued that the Fourth Amendment’s trespass to property protections must be applied in evaluating reasonableness under the Burger

administrative search test. When those trespassory

protections are applied as in Jones, Maine’s 24/7 GPS

tracking requirement is unreasonable. Plaintiff-Appellant’s Initial Brief at 14-25, 29-30, Thompson v.

Wilson, 159 F.4th 91 (No. 25-1007). Thompson further

argued that, even if analyzing his rights under the administrative search test, the court should evaluate reasonableness in accordance with the Fourth Amendment’s original meaning, which shows that the MDMR

12

Rule is like an impermissible general warrant that defies the Constitution’s minimum guarantees of protection. Id. at 1-4, 14-20, 30, 33-34.

Notwithstanding the First Circuit’s own suggestion

that Thompson’s Jones trespass-to-property-based

reasonableness arguments should “come pre-baked into

the Burger test,” App.19a, the court refused even to

consider Jones’s and Carpenter’s bearing on the

reasonableness

of

Maine’s

GPS

surveillance

requirement and its trespass on Thompson’s private

boat under Burger’s three prongs. App.28a n.18. The

lower court rejected those cases’ relevance to the

tracking requirement’s reasonableness, asserting that

they are “criminal in nature and involve government

searches to uncover evidence of criminal activity,” and

“[t]herefore, any direct comparison to the MDMR Rule

falls short.” App.28a n.18 (citation omitted). The First

Circuit’s determination that Maine’s placement of

“mindless” GPS tracking devices on lobstermen’s boats

was minimally intrusive was predicated on the

lobstermen’s expectations of privacy, not on their

protections from government trespass. App.27a-30a.

C. The Basic Legal Framework

In 1761, a Boston lawyer named James Otis argued against writs of assistance giving English officials unfettered discretion to search not only colonists’

homes, but also their commercial properties—ships,

warehouses, and shops. Otis called such writs “the

worst instrument of arbitrary power.” James Otis,

The Collected Political Writings of James Otis (Richard A. Samuelson ed., Liberty Fund 2015).

Otis’s speech helped spark the Revolution, and the

Founders’ aversion to the writs of assistance led to the

13

Fourth Amendment—a bulwark against unreasonable government intrusions. Carpenter v. United

States, 585 U.S. 296, 303-04 (2018) (citing 10 The

Works of John Adams 248 (C. Adams ed. 1856)).

This Court has long recognized “the Fourth

Amendment’s prohibition of unreasonable searches and

seizures is applicable to commercial premises, as well as

to private homes.” Burger, 482 U.S. at 699 (citation

omitted). Fourth Amendment protections exist “not

only with respect to traditional police searches

conducted for the gathering of criminal evidence but

also with respect to administrative inspections designed

to enforce regulatory statutes.” Id. at 700 (citing

Marshall v. Barlow’s, Inc., 436 U.S. 307, 312-13 (1978)).

Yet this Court has also held that a narrow group of

closely regulated industries “‘have such a history of

government oversight that no reasonable expectation of

privacy . . . could exist for a proprietor over the stock of

such an enterprise.’” Burger, 482 U.S. at 700 (citing

Katz v. United States, 389 U.S. 347, 351-52 (1967), and

Marshall, 436 U.S. at 313). “These cases are indeed

exceptions,” and “they represent responses to relatively

unique circumstances.” Marshall, 436 U.S. at 313. The

Court further reasoned that “[b]ecause the owner or

operator of commercial premises in a ‘closely regulated’

industry has a reduced expectation of privacy, the

warrant and probable-cause requirements, which fulfill

the traditional Fourth Amendment standard of

reasonableness for a government search . . . have

lessened application in this context.” Burger, 482 U.S.

at 702 (citation omitted).

Burger created a three-pronged reasonableness test

for administrative searches in “closely regulated”

industries:

14

First, there must be a “substantial” government

interest that informs the regulatory scheme

pursuant to which the inspection is made. . . .

Second, the warrantless inspections must be

“necessary to further [the] regulatory scheme.” . . .

[Third], “the statute’s inspection program, in

terms of the certainty and regularity of its

application, [must] provid[e] a constitutionally

adequate substitute for a warrant.”

Burger, 482 U.S. at 702-03 (citations omitted). “In other

words, the regulatory statute must perform the two

basic functions of a warrant: it must advise the owner

of the commercial premises that the search is being

made pursuant to the law and has a properly defined

scope, and it must limit the discretion of the inspecting

officers.” Id. at 703 (citation omitted).

After Burger, this Court’s decisions in Jones and

Carpenter addressed Fourth Amendment doctrine

regarding the government’s use of GPS trackers and

other surveillance technologies.8

Those recent

precedents focused on the Fourth Amendment’s

original meaning and revived a trespass-to-propertybased approach (as opposed to fixating solely on Katz’s

reasonable expectations of privacy view on individual

rights). See Jones, 565 U.S. at 404-09, 411; Carpenter,

585 U.S. at 303-07. In Jones, for example, this Court

held that “the Katz reasonable-expectation-of-privacy

test has been added to, not substituted for, the commonlaw trespassory test.” 565 U.S. at 409. This Court thus

As with Jones and Carpenter, Thompson’s case involves the

government’s use of GPS tracking technology to trespass on private

property, but here Maine claims the administrative search doctrine

allows the government to force federally licensed lobstermen to

submit to perpetual GPS surveillance.

8

15

rejected “apply[ing] exclusively Katz’s reasonableexpectation-of-privacy test . . . when that eliminates

rights that previously existed.” Id. at 411. Since Burger,

this Court has also warned against permitting “what

has always been a narrow [closely regulated industry]

exception to swallow the rule.” City of Los Angeles v.

Patel, 576 U.S. 409, 424-25 (2015) (Patel II).

Following Jones and Carpenter, the circuit courts

diverged in applying those cases in the context of

administrative searches. The first split concerns

whether government trespasses on private property

outside of commercial areas, hours, and operations

should be evaluated for reasonableness under the

Fourth Amendment’s basic trespass-to-property test,

not an administrative search test. Compare App.14a20a, 28a n.18, and Verdun v. City of San Diego, 51 F.4th

1033, 1037-48 (9th Cir. 2022), with Taylor II, 11 F.4th

at 487-90, and Rush, 756 F.2d 713 (applying similar

Fourth Amendment protections even pre-Jones).

The second split concerns whether courts applying

an administrative search doctrine must evaluate the

reasonableness of warrantless searches based on the

Fourth Amendment’s common-law trespassory protections, as under Jones, and not solely on reasonable expectations of privacy as under Katz.

Compare

App.24a-30a, 28a n.18, with Patel I, 738 F.3d at 106165. The First Circuit evaluates the factors of the Burger

administrative search test strictly according to property

owners’ reasonable expectations of privacy whereas the

Ninth Circuit requires that the factors must account for

trespass protections.

16

REASONS FOR GRANTING THE PETITION

I.

The Court Should Resolve the Lower-Court

Conflict over Whether the Government’s

Warrantless Trespass on Private Property

Outside of Commercial Areas and Hours

Violates the Fourth Amendment

The First Circuit created a circuit split when it held

that Maine could mandate that lobstermen must place

GPS tracking devices on their fishing boats and

submit to 24/7 trespassory surveillance in areas and

hours of personal, non-commercial use. The court

refused to apply the Fourth Amendment’s commonlaw trespass test to Maine’s trespassory surveillance

in non-commercial areas, hours, and operations,

holding that it was instead subject strictly to the

Burger administrative search test for “closely

regulated” industries.

That decision conflicts with the Ninth Circuit’s opinion in Rush, 756 F.2d 713, and the Sixth Circuit’s opinion in Taylor II, 11 F.4th at 487-89, on the issue of

whether the Fourth Amendment’s trespassory search

protections apply when the government trespasses on

private property outside of commercial areas, hours,

and operations. The First Circuit diverged from the

Ninth and Sixth Circuits in rejecting the Fourth

Amendment limiting principles that apply to trespassory surveillance.

17

A. The Ninth and Sixth Circuits apply the

Fourth Amendment’s common-law trespass

test when the government trespasses on

private property outside of commercial

areas and hours

Even before this Court’s decision in Jones, the Ninth

Circuit held in Rush that the administrative search test

for “closely regulated” industries does not apply to the

government’s “warrantless entry”—i.e., trespass—on

business owners’ private property outside of commercial

areas, hours, and operations. 756 F.2d at 717-18, 72122. Instead, the Ninth Circuit decided that the Fourth

Amendment prohibits such trespasses without a

warrant.

The regulation at issue in Rush placed no geographic

or temporal restrictions on daycare inspections, which

could be unannounced and warrantless at any time of

day—even inside the plaintiff’s private home. 756 F.2d

at 721.

Even though daycare operations were

considered a “closely regulated industry” in the Ninth

Circuit, the court held that when those operations are

conducted in a private residence, searches must be

limited both to the hours of daycare operations and to

the rooms used for childcare. Ibid.; see also Richards v.

Newsom, No. 8:23-cv-02413-JVS-KES, 2024 WL

4812537, at *11 (C.D. Cal. Oct. 16, 2024). Inspections

during business hours and in areas devoted to daycare

did not infringe on Fourth Amendment rights. Rush,

756 F.2d at 722. But once the children left, the home—

like Thompson’s fishing boat—reverted to private

property with full constitutional protections, reserved

for personal use and shielded from a warrantless

trespass.

18

The Ninth Circuit’s limitation on the scope of

inspections is especially stark considering the “urgent”

government interests in keeping children safe. Ibid.; see

also Golden Day Schools, Inc. v. Pirillo, 118 F.Supp.2d

1037, 1042-43 (C.D. Cal. 2000) (explaining Rush’s

government interest analysis).

The warrantless

inspection regime was designed to prevent easily

concealed “poisonous chemicals or firearms, open pools,

hazardous stairwells, and sexual or physical abuse.”

Rush, 756 F.2d at 720. These dangers are much more

severe—both in their nature and in their potential harm

to the most vulnerable members of society—than the

dangers of non-constantly-surveilled lobstermen. The

Ninth Circuit was right to distinguish between

commercial and non-commercial locations and uses.9

Later, in Taylor II, the Sixth Circuit held that the

administrative search test for “closely regulated”

industries does not apply to a government’s warrantless

trespass on private property outside of the “closely

regulated” industry’s commercial areas and operations.

11 F.4th at 487-89. The court reasoned that the test

could apply to warrantless searches of vehicles on a

“closely regulated” junkyard’s premises, but it does not

apply to the same automobile when parked on a city

street. Id. at 488. Accordingly, even though an

automobile—like a lobsterman’s fishing boat—can serve

dual commercial and non-commercial purposes, the

regulatory search doctrine “applies to industries, not

objects.” Ibid. Recognizing as much, the Sixth Circuit

held that non-commercial use of private property could

not be subject to a warrantless trespassory search. Ibid.

Notably, the Washington Supreme Court adopted the same

position as the Ninth Circuit in State v. Miles, 160 Wash. 2d 236,

250-52 (2007).

9

19

The Ninth and Sixth Circuit decisions align with

this Court’s holding in Jones that the Fourth Amendment’s “18th-century guarantee against unreasonable

searches” provides “at a minimum the degree of protection it afforded when it was adopted.” 565 U.S. at

409, 411.10 Under those holdings, the Fourth Amendment prohibits government trespasses to private

property, especially those physical trespasses perpetrated by continuous GPS surveillance without a warrant. Petitioner does not argue that all trespassory

searches are categorically unreasonable, but only that

a continuous, nonconsensual, warrantless, licenseconditioned trespass on private property used for noncommercial purposes cannot be justified under the administrative-search doctrine.

Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765),

considered to be “the true and ultimate expression of

constitutional law with regard to search and seizure,” Jones, 565

U.S. at 405 (citations omitted), shows that warrantless searches

that physically intrude upon and occupy private property were

unreasonable at the founding:

[O]ur law holds the property of every man so sacred, that

no man can set his foot upon his neighbour’s close without

his leave; if he does he is a trespasser, though he does no

damage at all; if he will tread upon his neighbour’s ground,

he must justify it by law.

Entick, 95 Eng. Rep. at 807 (cleaned up).

10

20

B. The First and Tenth Circuits rejected the

argument that the Fourth Amendment’s

common-law trespass test determines the

reasonableness

of

the

government’s

physical trespasses on private property

outside of commercial areas and hours

The panel below made no such distinctions between

commercial and non-commercial areas, hours, and uses,

directly splitting from the Ninth and Sixth Circuits. Indeed, upholding the 24/7 tracking of the boat’s location

extended the administrative search doctrine far beyond

the Ninth Circuit’s episodic, limited inspections contemplated in Rush. The panel’s approach transformed a

narrow exception into a license for constant trespassory surveillance, erasing core Fourth Amendment

protections against warrantless, suspicionless

searches.

Splitting even further from the Ninth Circuit, the

First Circuit admitted lobstermen are subject to

seasonal and weekend restrictions. App.29a. Like

daycares, lobstermen are not conducting business 24/7,

but Maine tracks them as if they are. Lobstermen must

submit to placing Maine’s GPS trackers on their boats

at all times and subject themselves to around-the-clock

trespassory surveillance while using their private

property for private, noncommercial uses in direct

contradiction to Rush.

The Tenth Circuit reached the same conclusion as

the First Circuit in a case in which homeowners used

their homestead to operate an animal training kennel.

Johnson v. Smith, 104 F.4th 153, 167 (10th Cir. 2024).

Nonetheless, the Tenth Circuit refused to apply the

Fourth Amendment’s trespass to property test and instead applied the Burger test, rejecting the argument

21

that the courts should not “apply[] the pervasively regulated industry exception—premised on reduced expectations of privacy—to [their] property-based physical intrusion claims.” Ibid. The Tenth Circuit observed that this Court gave “no hint” in Patel “of a revised approach to regulatory inspections resulting

from the Court’s recent Fourth Amendment trespass

jurisprudence.” Ibid.

If the First Circuit followed the Ninth, the panel

would have found limitless GPS monitoring violated the

Fourth Amendment. The GPS requirement mandates

constant surveillance, including when Thompson uses

his boat for noncommercial purposes, contradicting the

Ninth Circuit’s requirement that daycare inspections be

limited to commercial areas and commercial hours.11

The Ninth and Sixth Circuits rightly applied a limiting

principle to administrative searches—limits shrugged

off by the First and Tenth Circuits, opening the

floodgates to limitless surveillance.

Divergence on the scope of administrative searches

means that circuits apply inconsistent constitutional

standards. Further, future circuit courts tasked with

the same issue will have to choose which standard to

apply, further entrenching the split. Granting this

petition would forestall lower court confusion and give

this Court the opportunity to state a clear rule. The

Court should intervene now before lower courts repeat

the First Circuit’s errors, irreparably injuring business

11 Here, the government’s trespass on private fishing boats out-

side of commercial areas and hours is not even justified or supported

by the safety concerns that motivated courts to weaken Fourth

Amendment protections in industries like daycare and trucking.

Rush, 756 F.2d at 720; Owner-Operator Indep. Drivers Ass’n v. U.S.

Dep’t of Transp., 840 F.3d 879, 895 (7th Cir. 2016).

22

owners’ Fourth Amendment property rights in any

number of industries.

II. The Court Should Resolve a Circuit Split on

Whether the Reasonableness of a Warrantless

Administrative Search under the Burger Test

Depends in Part on Trespass to Property

Protections

or

Solely

on

Reasonable

Expectations of Privacy

A. This Court Has Not Yet Answered Whether

Jones’s Trespass to Property Protections

Apply under Burger

The First Circuit reassured the lobstermen that the

common-law trespass protections they argued for

come baked into Burger, even though the panel

rejected the lobstermen’s argument that the

reasonableness of the government’s administrative

search should be evaluated under the Fourth

Amendment’s common-law trespass test instead of

Burger. App.18a-19a.

Notwithstanding those reassurances, the First

Circuit then decided the common-law trespassory

protections from cases like Carpenter and Jones apply

only in criminal cases. App.28a n.18. Accordingly, the

lower court chose to evaluate the reasonableness of

Maine’s surveillance requirement under Burger based

solely on the lobstermen’s “reasonable expectations of

privacy” in a “closely regulated” industry, which are

virtually non-existent. See Burger, 482 U.S. at 700

(holding that closely regulated industries “‘have such a

history of government oversight that no reasonable

expectation of privacy . . . could exist for a proprietor

over the stock of such an enterprise’”) (citing Katz, 389

23

U.S. at 351-52). The First Circuit played a shell game

with the lobstermen’s Fourth Amendment protections.

The decision below demonstrates the need for this

Court to settle the question of when and how the Jones

property-based approach applies to evaluating the

reasonableness of warrantless administrative searches

under Burger.

Though Jones only specifically addressed step one of

the Fourth Amendment’s requirements—the existence

of a search—Jones shows that the trespass/physical

intrusion paradigm informs Fourth Amendment

reasonableness analyses, including under the Burger

test for warrantless administrative searches in “closelyregulated” industries.

The Burger Test is

fundamentally a reasonableness inquiry. But as

Jones suggested, the Fourth Amendment protects the

“18th-century guarantee against unreasonable

searches,” establishing a baseline for freedoms from

trespass that provides “at a minimum the degree of

protection it afforded when it was adopted.” Jones,

565 U.S. at 411.

Jones also rejected “apply[ing] exclusively Katz’s

reasonable-expectation-of-privacy test,” such as under

Burger, “when that eliminates rights that previously

existed[,]” especially basic freedoms from common-law

trespass guaranteed under the Fourth Amendment.

Jones, 565 U.S. at 411.

Yet Jones itself did not state whether the trespass

test should also be applied to administrative searches.

This ambiguity has led to doctrinal confusion, as lower

courts struggle to answer whether Jones trespass-toproperty protections inform the Burger analysis or are

confined to criminal cases. The First Circuit’s decision

reflects this confusion by finding that the Fourth

24

Amendment caselaw arising in the criminal context

cannot elicit a “direct comparison” with the Fourth

Amendment cases arising in the civil context. App.28a

n.18.

This Court has never squarely addressed whether

and to what extent the Jones protections inform the

Burger test. Until it does, lower courts will continue

diverging, leaving business owners and government

officials without clear constitutional boundaries. See

Orin 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 (2025).12

Lower courts’ uncertainty has practical and

significant consequences. Different circuits require

regulating agencies to implement different rules in

different ways, leading to arbitrary enforcement and

inconsistent protection of Fourth Amendment rights.

This Court should grant certiorari and resolve these

disputes between lower courts.

12 The separate opinions in Carpenter v. United States exemplify

the uncertainty about which precedents apply, and at what step of

Fourth Amendment analysis Jones should be considered. See 585

U.S. at 334, 341 (Kennedy, J., dissenting) (arguing property

principles should inform the Katz analysis); id. at 342-61 (Thomas,

J., dissenting) (arguing that Jones should replace Katz); id. at 405

(Gorsuch, J., dissenting) (arguing that Jones, Katz, and a historical

analysis should each be their own avenue of proving a Fourth

Amendment interest). Likewise, the circuit courts are also split.

See supra §§ I, II.

25

B. Circuits Are Split Over Whether to Apply

Jones’s Trespass to Property Protections to

Administrative Searches in CloselyRegulated Industries

The unanswered questions left open by Jones have,

as noted, caused doctrinal confusion among the lower

courts. The Ninth, Sixth, and First Circuits all conflict

on which protections to apply in warrantless civil

searches

to

determine

Fourth

Amendment

reasonableness. The Ninth Circuit applies the Jones

Trespass Test and the Reasonable Expectation of

Privacy Test when evaluating administrative

searches. The Sixth Circuit also applies the Jones

Test. Yet the First Circuit refused to apply the Jones

Trespass Test to administrative searches and instead

applied only the Katz Test. Circuits are picking and

choosing which test to apply to administrative searches,

diverging on whether Katz and Jones principles carry

over into a reasonableness analysis.

Confusion in the lower courts will persist, and

individuals will not know when their rights are violated

unless this Court grants the petition and clarifies that

both tests must be applied.

1. The Ninth Circuit applies the Jones and

Katz tests to administrative searches

The Ninth Circuit, en banc, applied Jones and Katz

to an administrative search in Patel I, 738 F.3d 1058,

and this Court affirmed in Patel II, 576 U.S. 409.13 Patel

I and II struck down a Los Angeles ordinance requiring

13 This Court reviewed the en banc decision in Patel II, but ad-

dressed only the Ninth Circuit’s Katz analysis, leaving the Jones

analysis from Patel I untouched and still binding within the circuit.

26

hotels to submit to warrantless administrative inspections. In Patel I, the Ninth Circuit applied the Jones

trespass protections and the Katz Reasonable Expectation of Privacy Test to hold that a warrantless inspection

of motel records was a Fourth Amendment search for

two reasons: (1) the government inspected the motel’s

private property without a warrant and without consent, and (2) the motel had a reasonable expectation of

privacy in those private records.

At the Fourth Amendment’s second step—

reasonableness—the Ninth Circuit invoked this Court’s

caselaw on warrantless administrative inspections. The

Ninth Circuit used its Jones and Katz-informed

holdings from step one—that the ordinance was

trespassory- and privacy-violative—to inform its step

two civil search analysis. Patel I, 738 F.3d at 1063.

Patel I explicitly distinguished between offices open

versus closed to the public, given that closed offices in

commercial buildings are, for Jones purposes, not open

to business invitees, and for Katz purposes, more

private. Ibid. (“If that office were not open to the public,

officers could not insist on conducting the inspection

there without an administrative search warrant.”).

Since the Patel decisions, the Ninth Circuit has gone

so far as holding the Jones trespass test takes priority

over the Katz test, Lyall v. City of L.A., 807 F.3d 1178,

1186 (9th Cir. 2015) (“Only where the search did not

involve a physical trespass do courts need to consult

Katz’s reasonable-expectation-of-privacy test.”), but still

applies both in civil search contexts to determine

whether a search occurred and whether that search was

reasonable. See, e.g., Hotop v. City of San Jose, 982 F.3d

710, 721 (9th Cir. 2020) (Bennett, J., concurring) (“Patel

I serves only to confirm the Fourth Amendment’s

requirement of a physical intrusion or its equivalent”);

27

Taylor v. San Francisco Sheriff’s Dep’t, No. 23-cv-04121DMR, 2024 WL 2808650, at *3 (N.D. Cal. May 31, 2024)

(“Where the search did not involve a physical intrusion,

the plaintiff must show that an ‘objectively reasonable’

expectation of privacy was violated.”). See also United

States v. Sayonkon, No. 16-cr-0265, 2017 WL 11426870,

at *8 (D. Minn. Jan. 24, 2017) (“[T]he Ninth Circuit

determined that searches . . . were ‘both a physical

intrusion upon a hotel’s papers and an invasion of the

hotel’s protected privacy interest in those papers.’”)

(quoting Patel I, 738 F.3d at 1061); Newman v. Moore,

743 F.Supp.3d 62, 68 n.1 (D.D.C. 2024) (recognizing

Patel I’s emphasis on both trespass and expectation of

privacy analyses).

2. The Sixth Circuit applies the Jones test

in civil searches

In Taylor v. City of Saginaw, the Sixth Circuit held

that police officers using chalk to mark the tires of

parked vehicles to track how long they’ve been parked

is a search under the Fourth Amendment and is not

justifiable under the community caretaking exception to

the warrant requirement. 922 F.3d 328, 331 (6th Cir.

2019) (Taylor I).

Because “the Katz reasonableexpectation-of-privacy test has been added to, not

substituted for, the common-law trespassory test[,]” the

court determined “Jones provides the appropriate

analytical framework” in this situation. Id. at 332

(citing Jones, 565 U.S. at 409 (internal citations

omitted)).

The central question under Jones is whether the

complained of act “constitutes common-law trespass

upon a constitutionally protected area.” Ibid. Because

the Supreme Court did not “provide clear boundaries for

the meaning of common-law trespass,” the Sixth Circuit

28

adopted the definition from the Restatement. Id. at 33233.

3. The First Circuit only applied the Katz

test to an administrative search

The panel’s decision that it must only apply

reasonable expectations of privacy principles (and not

common-law trespassory protections) split with the

Ninth and Sixth Circuits. The government conceded the

GPS device was a Fourth Amendment search, so the

panel next applied the Burger test—the three-pronged

substitute for the ordinary reasonableness inquiry

standard. App.17a (calling the Burger test “a three-part

reasonableness test”) (quoting Owner-Operator Indep.

Drivers Ass’n, 840 F.3d at 895).

As a substitute for reasonableness, the Burger test

was established with Katz principles, but this Court has

not addressed the issue after Jones held that the Fourth

Amendment requires a property-based analysis to

determine reasonableness. The Burger test’s premise

is that business owners purportedly surrender their

“reasonable expectations of privacy” by choosing to

make their living in “closely regulated” commerce.

Other circuits updated the Burger test on their own, but

the panel below split with those circuits in refusing to

apply Jones’s common-law trespassory protections to

evaluate reasonableness under its Burger analysis. The

First Circuit failed to consider the lobstermen’s

arguments that the government’s trespass on

Lobstermen’s fishing vessels outside of commercial

lobstering activities was, under Burger’s second

prong, unnecessary to the government’s regulatory

purpose of retrieving the particular location data

related to commercial lobster harvesting—lobstermen

29

already reported that under regulations in place

before Maine’s GPS tracking requirement.

Under Burger’s third prong, the First Circuit failed

to evaluate whether Maine’s rule was a constitutionally

inadequate substitute for committing a perpetual

physical trespass onto lobstermen’s fishing boats

without a warrant.

The First Circuit’s determination that the search was

minimally intrusive was based on the nature of the

information obtained (i.e., the lobstermen’s expectation

of privacy), and not on the fact that Maine’s requirement

for lobstermen to keep a GPS tracker on their boats for

24/7 surveillance committed a continuing physical

trespass on private property.

The First Circuit determined that placing “mindless

tracking devices” on lobstermen’s boats removed

government discretion in conducting searches. But that

ignores the government’s unfettered, unlimited

discretion in committing a physical trespass on private

property by coercing lobstermen, under threat of losing

their fishing licenses, to place a government tracking

device on their private property and surrender

unconditionally to constant 24/7 surveillance.

Jones established the property-based protections

that should have informed the panel’s analysis under

Burger at step two. If the panel below had applied Jones

like the Ninth and Sixth Circuits, the court would have

held the GPS device violated Thompson’s Fourth

Amendment rights.

After all, Jones and Thompson have nearly identical

facts: the government used GPS tracking data—

without a warrant—to follow a citizen’s vehicle without

the citizen having been charged with a crime. Jones,

565 U.S. at 402-04.

30

III. Certiorari Should Be Granted Because This

Case Is a Clean Vehicle to Resolve a

Recurring Issue of Nationwide Importance

The Fourth Amendment’s guarantees against unreasonable searches and seizures are meant to protect

Americans against arbitrary and intrusive government

officials and protect the citizenry’s property rights. Yet,

for decades, judicially created exceptions to this fundamental protection have allowed governments unfettered

discretion to monitor the American people. This case

provides one example. The ASMFC’s regulatory authority over every state on the Atlantic coast means the rule

at issue can lead to similar illegal searches in other

states. Every commercial lobsterman on the entire Atlantic seaboard will be subject to the government’s constant GPS tracking. Tobias Russell & Mitchell Scacchi,

Caught in a Trap: Tracking Lobster Vessels 24/7

(Mar. 12, 2026), https://tinyurl.com/uhkucrd3. But this

overreach is not isolated to lobstermen. Today, federal

and state governments heavily regulate all businesses.

The issues in this case portend serious Fourth Amendment problems for many business owners’ private property rights.

A. The issue of warrantless administrative

searches is ongoing because many other

states have adopted similar search

authorizations

Intrusive warrantless governmental searches of

businesses are likely to be recurring for two reasons.

First, because the ASMFC amendment is binding on

nearly a dozen jurisdictions, lobstermen all along the

Eastern Seaboard are subject to the same intrusive GPS

monitoring requirements. Second, Maine’s requirement

at issue here is part of a larger trend of oversight

31

agencies trying to force boat owners to install GPS

trackers.

First, Maine is not the only state to require continuous GPS tracking of lobster vessels. Pursuant to the

ASMFC amendment, every lobstering state on the East

Coast must either adopt a conforming regulation or potentially face the imposition of a moratorium on fishing

in their waters. See 16 U.S.C. § 5106. Several states

have already chosen the former, subjecting their lobstermen to permanent warrantless GPS tracking. See

322 Mass. Code Regs. § 7.11 (effective May 1, 2023);

N.H. Code Admin. R. Fis 612.01 (effective Feb. 21,

2024); N.J. Admin. Code § 7:25-14.16(a)(12) (effective

Mar. 8, 2024); 7 Del. Admin. Code § 3755-4.0 (effective

Mar. 11, 2024); 250-R.I. Code Regs. § 90-00-5.5.8 (effective Apr. 28, 2024); Md. Code Regs. 08.02.08.10(G) (effective Aug. 5, 2024).

Second, there is a larger trend of the government

trying to impose warrantless GPS tracking on fishing

vessel owners. A similar GPS tracking requirement was

struck down by the Fifth Circuit in the context of charter

fishing. Mexican Gulf Fishing Co. v. Dep’t of Com., 60

F.4th 956, 975-76 (5th Cir. 2023). In Mexican Gulf

Fishing, the warrantless imposition of GPS tracking

devices was struck down despite the court applying the

now-defunct Chevron deference. Id. at 963.

Attaching a tracker is not a one-time intrusion but a

continuous search of a person’s movements. This shows

not only that the unlawful harm Mr. Thompson suffers

because of a continual warrantless search will remain,

but also the recurring nature of warrantless trespassory

searches on private property.

32

B. The issue of warrantless administrative

searches is important because it diverts

from the Constitution’s protections and

subjects large swaths of property and

businesses to unmitigated surveillance

The Fourth Amendment was originally understood

to prevent the very search powers Respondent exerts.

In the last half century, courts have strayed far from

James Otis’s, and indeed the general public’s, fears of

unencumbered search power. This Court has made

clear that the ban on warrantless searches applies to

“commercial premises as well as homes.” Marshall,

436 U.S. at 312. In other words, the warrantless

administrative search of businesses “is the

exception[,]” not the rule. Id. at 313-14. This Court

has warned not all regulated industries qualify as

closely regulated industries. Patel II, 576 U.S. at 425.

“If such general regulations were sufficient to invoke

the closely regulated industry exception, it would be

hard to imagine a type of business that would not

qualify.” Ibid.

Indeed, despite this Court’s repeated insistence of

the narrow scope of this exception, many lower courts

have pushed the bounds of this exception to swallow

the rule. Industries considered closely regulated by

various lower courts include pharmacies, United

States v. Gonsalves, 435 F.3d 64, 67 (1st Cir. 2006);

massage parlors, Pollard v. Cockrell, 578 F.2d 1002,

1014 (5th Cir. 1978); commercial-fishing operations,

United States v. Raub, 637 F.2d 1205, 1208-09 (9th

Cir. 1980); day-care facilities, Rush, 756 F.2d at 72021; nursing homes, People v. Firstenberg, 92

Cal.App.3d 570, 578-80 (1979); jewelers, People v.

Pashigian, 150 Mich. App. 97, 100-01 (1986) (per

curiam); barbershops, Stogner v. Kentucky, 638

33

F.Supp. 1, 3 (W.D. Ky. 1985); and rabbit dealers,

Lesser v. Espy, 34 F.3d 1301, 1306-07 (7th Cir. 1994).

By allowing the closely regulated industry exception to apply to an ever-increasing number of businesses, lower courts ignore the narrowness of this exception. The result of these lower courts drifting further away from the original meaning of the Fourth

Amendment is that business owners’ rights against

intrusive governmental searches are dependent on

where they operate. See Jones, 565 U.S. at 411 (holding that the Fourth Amendment applies “an 18th-century guarantee against unreasonable searches, which

. . . must provide at a minimum the degree of protection [against common-law trespass] it afforded when

it was adopted”).

The First Circuit’s decision to exclude the Jones

trespass test because this is a civil, closely regulated

industry case as opposed to a criminal case, App.23a

n.18, means that—as the lobstermen themselves

noted in their comments to this rule during the

administrative process—commercial lobstermen have

less Fourth Amendment protections than criminallyaccused defendants do. That cannot be right.

Certiorari is warranted.

34

CONCLUSION

This Court should grant the petition.

Respectfully submitted,

FRANK D. GARRISON

MATTHEW GILLIAM

DAVIS VAN INWEGEN

Pacific Legal Foundation

3100 Clarendon Blvd.

Suite 1000

Arlington, VA 22201

MARK MILLER

Counsel of Record

Pacific Legal Foundation

4440 PGA Blvd., Suite 307

Palm Beach Gardens, FL

33410

(916) 503-9001

Mark@pacificlegal.org

MARK PINKERT

Holtzman Vogel

2333 Ponce de Leon Blvd.

Suite 600

Coral Gables, FL 33134

Counsel for Petitioner

M ARCH 2026