Respondents Brief — Frank Thompson, Petitioner v. Carl Wilson, Commissioner, Maine Department of Marine Resources

Supreme Court briefJul 6, 2026

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Text

No. 25-1105

IN THE

Supreme Court of the United States

————

FRANK THOMPSON,

Petitioner,

CARL WILSON, IN HIS OFFICIAL CAPACITY AS

COMMISSIONER, MAINE DEPARTMENT OF

MARINE RESOURCES,

Respondent.

————

On Petition For Writ Of Certiorari To The

United States Court Of Appeals

For The First Circuit

————

BRIEF IN OPPOSITION

————

AARON M. FREY

Attorney General, State of Maine

VALERIE A. WRIGHT

Assistant Attorney General

Counsel of Record

JACK DAFOE

Assistant Attorney General

OFFICE OF THE MAINE

ATTORNEY GENERAL

6 State House Station

Augusta, Maine 04333-0006

(207) 626-8800

valerie.a.wright@maine.gov

Counsel for Respondent

QUESTION PRESENTED

The State of Maine, along with other member states

of the Atlantic States Marine Fisheries Commission,

require all federally permitted lobstermen to install an

electronic device on their lobster fishing vessel that

solely transmits the vessel’s position when the vessel

is in the water. Five lobstermen challenged Maine’s

vessel tracking requirement in the district court,

claiming that it violates the Fourth Amendment. The

Commissioner of the Maine Department of Marine

Resources conceded that the vessel tracking requirement authorizes “searches” within the meaning of the

Fourth Amendment, and the lobstermen conceded

that it authorizes administrative searches of a “closely

regulated industry.” Based on the parties’ concessions

in the district court, the First Circuit applied this

Court’s three-part test from New York v. Burger, 482

U.S. 691 (1987), to assess the reasonableness of warrantless searches of a closely regulated industry and

determined that the vessel tracking requirement does

not violate the Fourth Amendment. In his petition to

this Court, the single lobsterman petitioner focuses on

an argument he never raised to the First Circuit, namely,

that this Court’s precedents concerning when a trespass

constitutes a Fourth Amendment search may somehow

displace or modify the Burger test for administrative

searches of a closely regulated industry.

The Question Presented, therefore, is:

Whether the First Circuit erred in applying the New

York v. Burger test for Fourth Amendment reasonableness to Maine’s lobster vessel tracking regulation

where, in the district court, Respondent conceded that

the lobster vessel tracking regulation authorizes searches

within the meaning of the Fourth Amendment and

Petitioner conceded that the commercial lobster

fishery is a closely regulated industry.

(i)

TABLE OF CONTENTS

Page

QUESTION PRESENTED ..................................

TABLE OF AUTHORITIES ................................

STATEMENT OF THE CASE ............................

Factual and Legal Background ................

Procedural History....................................

REASONS FOR DENYING THE PETITION ....

Petitioner did not raise his arguments

relating to trespass in the First Circuit ...

The First Circuit’s decision is consistent

with this Court’s precedents regarding

administrative searches of closely

regulated industries..................................

A. New York v. Burger has not been

undermined or altered by this Court’s

subsequent

decisions

regarding

“trespass.” ............................................

B. The First Circuit did not err in

applying the Burger test to determine

whether the DMR Rule is consistent

with the Fourth Amendment ..............

III. The First Circuit’s decision does not

conflict with other circuit court decisions ....

A. The First Circuit’s decision does not

conflict with decisions of the Ninth and

Sixth Circuits with respect to the scope

of administrative searches of closely

regulated industries .............................

II.

(iii)

TABLE OF CONTENTS—Continued

Page

B. The First Circuit’s decision does not

conflict with decisions of the Ninth

and Sixth Circuits with respect to

the reasonableness of administrative

searches of closely regulated industries ......................................................

IV. This case is a poor vehicle for reviewing

the Question Presented. ...........................

CONCLUSION ....................................................

TABLE OF AUTHORITIES

CASES

Page(s)

Carpenter v. United States,

585 U.S. 296 (2018) ....................... 11, 12, 15, 20

City of Los Angeles v. Patel,

576 U.S. 409 (2015) ................................ 8-10, 21

Cutter v. Wilkinson,

544 U.S. 709 (2005) ...................................

Hotop v. City of San Jose,

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

Johnson v. Smith,

104 F.4th 153 (10th Cir. 2024) .................

Kahler v. Kansas,

589 U.S. 271 (2020) ...................................

Katz v. United States,

389 U.S. 347 (1967) .................. 11, 14, 15, 19-22

Lyall v. City of Los Angeles,

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

Medeiros v. Vincent,

431 F.3d 25 (1st Cir. 2005) .......................

1, 2

Mexican Gulf Fishing Co. v. United States

Dep’t of Com.,

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

New York v. Burger,

482 U.S. 691 (1987) ............................ 5-13, 15-24

Newman v. Moore,

743 F. Supp. 3d 62 (D.D.C. 2024), aff’d,

151 F.4th 472 (D.C. Cir. 2025) .................

Patel v. City of Los Angeles,

738 F.3d 1058 (9th Cir. 2013) ................... 21, 22

TABLE OF AUTHORITIES—Continued

Page(s)

R.I. Fishermen’s All., Inc. v.

R.I. Dep’t of Env’t Mgmt.,

585 F.3d 42 (1st Cir. 2009) .......................

1, 2

Rush v. Obledo,

756 F.2d 713 (9th Cir. 1985) .............. 7, 8, 16-18

State v. Giles,

669 A.2d 192 (Me. 1996) ...........................

Taylor v. City of Saginaw,

11 F.4th 483 (6th Cir. 2021) ............. 7, 8, 18, 21

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

No. 23-CV-04121-DMR, 2024 WL

2808650 (N.D. Cal. May 31, 2024) ...........

United States v. Jones,

565 U.S. 400 (2012) .... 7, 8, 11, 12, 14, 15, 19-22

United States v. Sayonkon,

No. 16-CR-0265, 2017 WL 11426870

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

United States v. Villamonte-Marquez,

462 U.S. 579 (1983) ...................................

CONSTITUTION

U.S. Const. amend. IV ................... 5-7, 9-12, 14-24

U.S. Const. amend. XIV ...............................

STATUTES AND REGULATIONS

Me. Stat., tit. 12, §§ 4651-4656 (2025) .........

Me. Stat., tit. 12, § 6133(1) (2025) ...............

Me. Stat., tit. 12, § 6173 (2025). ...................

vii

TABLE OF AUTHORITIES—Continued

Page(s)

13-188 Me. Code R. ch. 5 ..............................

13-188 Me. Code R. ch. 25.98 .......................

13-188 Me. Code R. ch. 25.98(A)(1) ..............

13-188 Me. Code R. ch. 25.98(B)(1) ..............

13-188 Me. Code R. ch. 25.98(C) ..................

13-188 Me. Code R. ch. 25.98(C)(1) ..............

13-188 Me. Code R. ch. 25.98(C)(3)-(4) ........

13-188 Me. Code R. ch. 25.98(E) ..................

OTHER AUTHORITIES

Atlantic States Marine Fisheries Commission,

Addendum XXIX To Amendment 3 To

The American Lobster Fishery Management Plan (March 2022), attached to

Appellee’s Brief, U.S. Court of Appeals

for the First Circuit, No. 25-1007, filed

May 8, 2025 ............................................... 2, 3, 5

Maine Lobster Community Alliance, A

Lobsterman is a Lobsterman, Regardless

of Gender (July 7, 2023), available at

https://www.mlcalliance.org/post/a-lobst

erman-is-a-lobsterman-regardless-of-gen

der (last visited June 28, 2026) ................

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 (2025)..........................................

RESPONDENT’S BRIEF IN OPPOSITION

Respondent Carl Wilson, Commissioner of the Maine

Department of Marine Resources (“Commissioner”),1

respectfully opposes the Petition for a Writ of

Certiorari to review the judgment of the United States

Court of Appeals for the First Circuit in this case.

STATEMENT OF THE CASE

A. Factual and Legal Background

Since 1942, Maine has been a party to the Atlantic

States Marine Fisheries Compact (“Compact”), an

agreement between every Atlantic coastal state

(including the District of Columbia) to “exercise joint

regulatory oversight of their fisheries.” Medeiros v.

Vincent, 431 F.3d 25, 27 (1st Cir. 2005). Maine is thus

a member of the Atlantic States Marine Fisheries

Commission (“Commission”), the interstate organization that implements the Compact. See Me. Stat., tit.

12, §§ 4651-4656 (2025). The Commission establishes

interstate fishery management plans setting minimum

conservation standards that states conform to (or

exceed) by adopting appropriate modifications to their

state laws or regulations. See R.I. Fishermen’s All.,

Inc. v. R.I. Dep’t of Env’t Mgmt., 585 F.3d 42, 46 (1st

Cir. 2009); Medeiros, 431 F.3d at 27-28.

Through its American Lobster Management Board

(“Board”), the Commission coordinates the management of the American lobster (Homarus americanus)

fishery in its member states’ jurisdictional waters

pursuant to Amendment 3 to the Commission’s

Interstate Fishery Management Plan for American

During the pendency of the proceedings in the lower courts,

former Commissioner Patrick Keliher retired and was replaced

by current Commissioner Wilson. See Pet. App. 7a n.7.

Lobster and subsequent Addenda adopted by the

Board. See R.I. Fishermen’s All., 585 F.3d at 46;

Medeiros, 431 F.3d at 27-28. The Board initiated what

became Addendum XXIX to address “the critical need

for high-resolution spatial and temporal data to

characterize effort”—that is, the location of fishing

vessels and the location and density of fishing gear—

in the American lobster fishery. Pet. App. 137a.

Specifically, the Board initiated Addendum XXIX in

the context of four “challenges the fishery is currently

facing [that] pose a critical need for electronic tracking

data.” No. 25-1007, Appellee’s Br. at PageID # 61, § 2.1

(May 8, 2025).2



First, the Board explained that currently

available data is insufficiently detailed for

management and scientific purposes, such as

conducting stock assessments.

See id. at

PageID # 61, 62-63; §§ 2.1, 2.2.2.



Second, the Board explained that “it is critical

to gather and provide updated and enhanced

spatial effort data” to better inform federal

regulators, whose efforts to protect threatened

marine species can have negative impacts on

the lobster fishery. Id. at PageID #s 61, 63; §§

2.1, 2.2.3.



Third, the Board explained that “[i]t is critically

important to record the footprint of the [U.S.]

lobster fishery as spatial allocation discussions

occur” around competing uses of the ocean, such

Petitioner included only excerpts of Addendum XXIX in

his Appendix. Accordingly, when citing to Addendum XXIX,

Respondent cites to the complete Addendum XXIX attached to its

brief submitted to the First Circuit.

as offshore oil and gas development.

PageID #s 61, 63-64; §§ 2.1, 2.2.4.



Id. at

Fourth, the Board explained that the “large

geographic footprint and low density of lobster

gear in the offshore federal management area”

makes enforcement challenging, and that

having more accurate data will help law

enforcement identify where fishing gear is

located for inspection purposes. Id. at PageID

#s 61, 64; §§ 2.1, 2.2.5.

In developing Addendum XXIX, the Board assessed

precisely what “ping” rate— how often a vessel’s

electronic tracking device captures and transmits the

vessel’s position—is necessary to capture the type of

detailed data needed. No. 25-1007, Appellee’s Br. at

PageID # 66, § 3.1.1. The Board ultimately determined

that a rate of one ping per minute was required

because that rate “is necessary to distinguish lobster

fishing activity from transiting activity and can allow

estimation of the number of traps per trawl.” Id.

After the Commission approved Addendum XXIX in

March 2022, and to comply with Maine’s obligations

under the Compact, the Maine Department of Marine

Resources (“DMR”) promulgated Chapter 25.98

(“DMR Rule”). See Pet. App. 150a-155a. The DMR

Rule requires lobstermen3 holding both a Maine

commercial lobster license and a federal lobster permit

to install an approved electronic tracking device on the

permitted vessel listed on their license and maintain

“Lobstermen” is a gender-neutral term in the Maine lobster

industry. See Maine Lobster Community Alliance, A Lobsterman

is a Lobsterman, Regardless of Gender (July 7, 2023), available at

https://www.mlcalliance.org/post/a-lobsterman-is-a-lobstermanregardless-of-gender (last visited June 28, 2026).

the device in operational order while the vessel is in

use. Id. 152a-154a (ch. 25.98(B)(1), (C)). There are

several exceptions to that general requirement: (1) the

license holder is not required to keep the tracker

externally powered (plugged in) when the vessel is

moored or docked; (2) the device may be inoperative

when the vessel is removed from coastal waters for an

extended period of time; (3) the device may be

inoperative for the purpose of being repaired or

replaced; and (4) if the device fails and becomes

inoperable, the license holder may continue fishing

with approval from DMR while the situation is

addressed. See id. 153a (ch. 25.98(C)(3)-(4), (E)).

DMR has provided each license holder with an

approved tracking device, Pet. App. 6a-7a, but a license

holder can choose to use a different device if it has been

approved by the Commission, id. 151a-152a (ch.

25.98(A)(1)). The tracking device collects the position

of the vessel once per minute when the vessel is

moving and once every six hours when the vessel is

moored or docked. Id. 74a; Federal Permit Holder

Vessel Tracking Requirements, Dist. Ct. Doc. No. 1-3 at

PageID # 1.4

Vessel location data from the electronic tracking

devices is transmitted to the Atlantic Coastal

Petitioner repeats to this Court an allegation he made to the

district court, that the device provided by DMR is compatible with

Bluetooth and Wi-Fi and can collect audio information aboard a

vessel. Petition 6; Pet. App. 181a. The district court properly

concluded that this allegation was contradicted by the plaintiffs’

own submissions, noting that the record makes clear that the

tracking device provided by DMR only collects data on “the time

and position of fishing vessels, not audio information . . . as

[p]laintiffs feared.” Pet. App. 120a (internal quotation marks and

citations omitted).

Cooperative Statistics Program (“ACCSP”), which

maintains the Standard Atlantic Fisheries Information

System (“SAFIS”) database. Pet. App. 175a-176a.

ACCSP has protected confidential information relating

to fisheries—including self-reported Vessel Trip

Report data—for years using the same electronic

transmittal systems (approved by NOAA Fisheries)

and the SAFIS database, as described in Addendum

XXIX. See No. 25-1007, Appellee’s Br. at PageID # 71,

§ 3.2.3. Further, Maine law requires that fisheries

data be kept confidential and not be disclosed in a

manner that permits identification of any person or

vessel. Me. Stat., tit. 12, § 6173 (2025). DMR

regulations also require that publicly released data

not identify individual vessels or license holders. See

13-188 Me. Code R. ch. 5.

B. Procedural History

On January 2, 2024, five lobstermen filed a

Complaint in the United States District Court for the

District of Maine alleging, among other claims, that

the DMR Rule violates the Fourth Amendment, incorporated against the states through the Fourteenth

Amendment. Pet. App. 32a, 156a-189a. The district

court granted the Commissioner’s Motion to Dismiss

and dismissed the lobstermen’s Motion for Preliminary

Injunction as moot. Pet. App. 31a-32a, 134a. The

district court analyzed the lobstermen’s Fourth

Amendment claim based on (i) the Commissioner’s

concession that the DMR Rule authorizes “searches”

within the meaning of the Fourth Amendment and

(ii) the lobstermen’s concession that lobstering is a

closely regulated industry for purposes of applying the

three-part test from New York v. Burger, 482 U.S. 691

(1987), for assessing the Fourth Amendment reasonableness of administrative searches of closely regulated

industries. Pet. App. 102a n.18, 104a & n.19. After

carefully applying this Court’s precedents, the district

court held that the lobstermen had failed to state a

plausible claim for relief because the DMR Rule

authorizes searches that satisfy the test for lawful

administrative searches of closely regulated industries

under Burger and its progeny. Pet. App. 105a, 115a120a, 134a.

One of the lobstermen plaintiffs, Frank Thompson,

appealed the district court’s dismissal of the Fourth

Amendment claim to the United States Court of

Appeals for the First Circuit. Pet. App. 7a n.6. On

appeal, Thompson argued that (i) the DMR Rule

violates the Fourth Amendment regardless of whether

it satisfies the Burger test; and, in the alternative,

(ii) subsequent case law has modified the Burger

test with respect to when a search is necessary to

further a regulatory scheme, and the DMR rule fails

this modified test. Pet. App. 14a-30a. Thompson also

attempted to reverse his concession in the district

court and argue that lobster fishing is not a closely

regulated industry, thus placing the DMR Rule outside

Burger’s ambit. Pet. App. 12a-14a.

The First Circuit affirmed. See Pet. App. 1a-30a.

The First Circuit proceeded from the parties’

concessions in the district court; the court declined to

allow Thompson to reverse course on his concession

that lobster fishing is a closely regulated industry for

purposes of the relevant Fourth Amendment analysis.

Pet. App. 8a, 12a-14a. The court therefore applied the

Burger test for assessing the Fourth Amendment

reasonableness of administrative searches of a closely

regulated industry. Pet. App. 9a-11a, 20a-30a. The

First Circuit concluded that the DMR Rule satisfies all

three prongs of the Burger test because the parties

agreed that Maine has a substantial government

interest at stake in the vessel tracking regulatory

scheme (conserving the commercial lobster fishery),

Pet. App. 20a; warrantless searches are necessary to

further the regulatory scheme, Pet. App. 20a-26a; and

the notice, timing, frequency, and scope of the searches

provide a constitutionally adequate substitute for a

warrant, Pet. App. 26a-29a. Therefore, the First

Circuit held that the DMR Rule does not violate the

Fourth Amendment. Pet. App. 30a.

REASONS FOR DENYING THE PETITION

I. Petitioner did not raise his arguments

relating to trespass in the First Circuit.

Petitioner’s proposed questions presented and the

arguments in his Petition focus on the First Circuit’s

purported failure to apply Fourth Amendment “trespassory protections” under United States v. Jones, 565

U.S. 400 (2012) to its assessment of the vessel tracking

requirement. See Pet. i, 2-4, 14-15, 16-29. Indeed,

Petitioner asserts that the First Circuit “refused to

apply the Fourth Amendment’s common-law trespass

test” to the DMR Rule, implying that he had urged the

First Circuit to apply such a test. Pet. 16. But

Petitioner did not argue to the First Circuit that

courts, when assessing an administrative search of a

closely regulated industry, must apply a common-law

trespass test derived from Jones, either as part of the

Burger test or in addition to that analysis. In fact, the

word “trespass” does not appear once in his 43-page

opening brief or in his reply brief in the First Circuit.

As for Rush v. Obledo, 756 F.2d 713 (9th Cir. 1985),

and Taylor v. City of Saginaw (Taylor II), 11 F.4th 483

(6th Cir. 2021), cases from other circuits that

Petitioner now faults the First Circuit for failing to

apply, Petitioner did not cite Rush at all and cited

Taylor II only once on a point unrelated to any trespass

test. See No. 25-1007, Appellant’s Br. at PageID # 40

(Apr. 1, 2025). Although Petitioner did urge the First

Circuit to reinterpret the word “necessary” in the

Burger test based on this Court’s decision in City of Los

Angeles v. Patel, 576 U.S. 409 (2015), he did not argue

that Patel incorporated a common-law trespass test

from Jones into the Burger test. See id. at PageID #

33-36. Unsurprisingly, then, the First Circuit did not

address these arguments and did not cite either Rush

or Taylor II regarding a purported trespass test.

Petitioner’s arguments regarding application of a

“Jones test” or a “common-law trespass test” to the

Burger analysis, see Pet. i, 2-4, 14-29, 33, are therefore

not properly before this Court. See Kahler v. Kansas,

589 U.S. 271, 279 n.4 (2020) (stating that a claim was

“not properly before” the Court because petitioner “did

not raise the argument below, and the [lower] courts

therefore did not address it”). Because this Court is a

“[C]ourt of review, not of first view,” Cutter v. Wilkinson,

544 U.S. 709, 718 n.7 (2005), the Commissioner

respectfully requests that the Court deny Petitioner

the opportunity to pursue new arguments that were

neither raised nor addressed below.

II. The First Circuit’s decision is consistent

with this Court’s precedents regarding

administrative

searches

closely

regulated industries.

A. New York v. Burger has not been

undermined or altered by this Court’s

subsequent

decisions

regarding

“trespass.”

To recognize why the First Circuit’s decision does

not conflict with this Court’s precedents or with other

circuit court decisions (see Part III infra), it is

important to understand the operation of the threepart test for assessing Fourth Amendment reasonableness from New York v. Burger. In Burger, the

Court explained that a warrantless search of a closely

regulated industry (sometimes referred to as a

“pervasively regulated industry”) is “reasonable,” and

therefore does not violate the Fourth Amendment, if

(1) there is a substantial government interest behind

the regulatory framework pursuant to which the

search is made; (2) the search is “necessary to further

[the] regulatory scheme”; and (3) the regulatory

framework “perform[s] 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.” 482 U.S.

at 702-03 (internal quotation marks omitted). In 2015,

the Court affirmed the continuing viability of the socalled Burger test. See Patel, 576 U.S. at 426.

Although courts, including this Court in Patel, have

questioned what types of businesses may constitute

“closely regulated industries” for purposes of the

Burger analysis, see id. at 424-25, the Burger test

continues to guide judicial review of warrantless

searches in such industries.

Several aspects of Burger bear emphasizing in light

of Petitioner’s arguments to this Court. First, the

Burger test applies to warrantless searches—that is,

the test only comes into use when there is a “search”

within the meaning of the Fourth Amendment. See

482 U.S. at 702. Case law about what constitutes a

“search” is, therefore, not relevant to the Burger analysis.

Second, when the Burger test applies, it is determinative of Fourth Amendment reasonableness—in

other words, an administrative search of a closely

regulated industry is reasonable under the Fourth

Amendment when it satisfies the Burger test. See

Burger, 482 U.S. at 702 (“[W]arrantless inspection . . .

even in the context of a pervasively regulated

business, will be deemed to be reasonable only so long

as [the] three criteria are met.”); Patel, 576 U.S. at 426

(“Even if we were to find that hotels are pervasively

regulated, [the challenged regulation] would need to

satisfy three additional criteria to be reasonable under

the Fourth Amendment.” (emphasis added)). A court

analyzing an administrative search of a closely

regulated industry under Burger need not also

determine whether the search is reasonable under a

separate, undefined standard.

Third, although this Court in Burger noted the

reduced expectation of privacy in “commercial property employed in ‘closely regulated’ industries’” as a

general rationale supporting the development of

administrative search law, 482 U.S. at 700, the Burger

test itself does not turn on the commercial property

owner’s expectations of privacy. Rather, the ultimate

determination of reasonableness under Burger depends

on whether the search satisfies the basic functions of

a warrant. See id. at 703. The Burger analysis, then,

can and does apply equally to actions that constitute

“searches” within the meaning of the Fourth Amendment because they involve a physical intrusion, see,

e.g., Jones, 565 U.S. at 404-05, and actions that

constitute “searches” because they infringe upon a

reasonable expectation of privacy in the absence of any

physical intrusion, see, e.g., Katz v. United States, 389

U.S. 347, 352-53 (1967).

With this background in mind, and contrary to

Petitioner’s arguments, this Court’s decisions in Jones

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

did not abrogate or fundamentally change the Burger

analysis. In Jones, the Court concluded that a physical

intrusion on private property to obtain information

constitutes a search within the meaning of the Fourth

Amendment regardless of the property owner’s expectation of privacy in that property. 565 U.S. at 406-07.

The Court therefore clarified that the “reasonable

expectation of privacy”-based conception of a search

articulated in Katz “has been added to, not substituted

for, the common-law trespassory test” for identifying a

search. Id. at 409 (emphasis omitted). Jones is a

seminal case in understanding what constitutes a

search under the Fourth Amendment, but Jones does

not fundamentally affect how courts analyze administrative searches of closely regulated industries under

Burger and its progeny. In Carpenter, the Court

considered a person’s privacy interests “in the record

of his physical movements,” as captured through

detailed cell-site location information gathered as part

of a criminal investigation, to determine whether the

gathering of such information implicates the Fourth

Amendment. 585 U.S. at 310-12. The Court’s holding

that the government’s acquisition of location information from cell service carriers constituted a search

elaborates on what constitutes a search under the

Fourth Amendment but, like Jones, does not affect the

Burger analysis of administrative searches of closely

regulated industries. Id. at 310.

B. The First Circuit did not err in applying

the Burger test to determine whether

the DMR Rule is consistent with the

Fourth Amendment.

The First Circuit correctly applied this Court’s

precedents on administrative searches of closely

regulated industries considering the operation of the

DMR Rule and the parties’ concessions. As noted

above, the Commissioner conceded in the district court

that the DMR Rule authorizes “searches” within the

meaning of the Fourth Amendment in part because it

effects a physical intrusion (by the tracking devices) on

the lobstering vessels. See Pet. App. 8a. For his part,

Petitioner (and the other plaintiffs) conceded in the

district court that lobster fishing is a “closely regulated

industry” for purposes of applying the administrative

search analysis. See id. 8a, 12a-14a, 104a & n.19. In

light of these concessions, the First Circuit properly

concluded that it should apply the Burger test to

determine whether the tracking requirement is

reasonable under the Fourth Amendment. See id. 10a11a, 15a-16a, 20a-30a.

In applying the third Burger test criterion—

assessing whether the challenged regulation performs

the basic functions of a warrant—the First Circuit first

concluded that the DMR Rule “provides notice of the

tracking requirement and the surrounding regulatory

scheme.” Pet. App. 27a. The First Circuit then

considered whether the DMR Rule also sufficiently

“limit[s] an inspecting officer’s discretion in terms of

time, place, and scope.” Id. 26a. In this context, the

First Circuit expressly considered Petitioner’s contention that the DMR Rule operates to impermissibly

capture the location of his lobstering vessel when he is

using it for non-lobstering purposes, such as fishing for

other species or assisting in an emergency sea rescue.6

Id. 27a-29a. The court ultimately determined that the

DMR Rule is sufficiently restricted based on the

“limited and specific type of data” collected—“the

location of licensed commercial fishing vessels”—and

other fact-specific aspects of the DMR Rule’s operation

and the lobster fishing industry. Id.

For example, the First Circuit noted that alternative

methods of collecting the necessary vessel data would

not be effective given the nature of lobster fishing:

lobster fishing vessels, unlike other types of commercial premises, do not have regular and strictly

delineated business hours because there are few

temporal limitations on when lobster fishing can occur.

Pet. App. 29a. The First Circuit further cited longstanding precedent that “warrantless searches on the

high seas are unique.” Pet. App. 25a-26a; see United

States v. Villamonte-Marquez, 462 U.S. 579, 592 (1983)

(noting that “the First Congress clearly authorized the

suspicionless boarding of vessels, reflecting its view

Petitioner conceded in the district court that the DMR Rule

satisfies the first prong of the Burger test. See Pet. App. 105a106a. Although he raised arguments regarding the second prong

before the First Circuit, he focuses on Burger’s third prong in his

Petition.

The lower courts did not consider the allegation that

Petitioner used his vessel to transport his daughter-in-law from

an island to the mainland to give birth because it appears for the

first time in the Petition; it is found nowhere in the record below.

See Pet. 7; Pet App. 49a, 180a, 191a.

that such boardings are not contrary to the Fourth

Amendment”); see also State v. Giles, 669 A.2d 192, 193

(Me. 1996) (“The special exigencies of sea travel,

including easy access to international waters and

movement not limited to fixed highways, and the

historical fact that seagoing vessels have always been

subject to boarding by government officials, distinguish vessel stops from vehicle stops.”).7

The First Circuit did not, as Petitioner contends,

“only appl[y] the Katz test.” Pet. 28. In fact, the First

Circuit did not apply the “Katz test” at all because it

did not need to do so. The “Katz test” is a test for

determining whether a search has occurred in the first

place, not whether a search is reasonable. See Katz,

389 U.S. at 353 (“The Government’s activities . . .

violated the privacy upon which [petitioner] justifiably

relied . . . and thus constituted a ‘search and seizure’

within the meaning of the Fourth Amendment.”);

Jones, 565 U.S. at 406 (“Our later cases have applied

the analysis of Justice Harlan’s concurrence in [Katz],

which said that a [search] occurs when government

officers violate a person’s ‘reasonable expectation of

privacy.’” (quoting Katz, 389 U.S. at 360 (Harlan, J.,

concurring))); see also 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, 310

(2025) (explaining that “the Jones test” and the “Katz

test” are “two search tests” that provide “separate

ground[s] for identifying a search” (emphasis added)).

As has now been noted several times, the Commissioner

Maine law also expressly provides that “[m]arine patrol

officers may stop and board any watercraft at any time to inspect

its documents, licenses and permits of the occupants of the

watercraft and to conduct a safety inspection.” Me. Stat., tit. 12,

§ 6133(1) (2025).

conceded that the DMR Rule authorizes “searches”

within the meaning the Fourth Amendment.8 More

generally, the First Circuit never cited Katz and

manifestly did not ground its analysis of the DMR Rule

on Petitioner’s expectation of privacy (or lack thereof).

Nor did the First Circuit conclude, as Petitioner

claims, that “Fourth Amendment trespassory protections

under [Jones] apply to criminal cases only.” Pet. i. The

First Circuit did not cite Jones in its opinion, which is

unsurprising considering that the Commissioner

conceded the existence of a search within the meaning

of the Fourth Amendment. In considering the scope

and intrusiveness of the DMR Rule under the third

Burger test criterion, the First Circuit rejected any

“direct comparison” to criminal surveillance cases such

as Carpenter and Petitioner’s suggestion that any

government use of tracking technology is per se

unreasonable under the Fourth Amendment. See

Pet. App. 28a n.18. But the First Circuit did not

purport to articulate any general legal rule regarding

the application of “trespassory protections” to noncriminal searches.

In sum, the First Circuit correctly applied this

Court’s Burger precedent to determine whether the

DMR Rule is consistent with the Fourth Amendment.

One of the amici argues that the DMR Rule should be

analyzed as effecting a seizure, but this argument was never

raised below.

III. The First Circuit’s decision does not

conflict with other circuit court decisions.

A. The First Circuit’s decision does not

conflict with decisions of the Ninth and

Sixth Circuits with respect to the scope

of administrative searches of closely

regulated industries.

Petitioner attempts to identify a circuit split on the

question of how courts should assess administrative

searches of commercial premises that may also

incidentally reach some non-commercial activity. Pet.

16-22. He asserts that the Ninth and Sixth Circuits,

unlike the First and Tenth Circuits, “apply the Fourth

Amendment’s common-law trespass test when the

government trespasses on private property outside of

commercial areas and hours.” Id. 17. The decisions

that he cites, however, do not support this statement

and the claimed circuit split.

For the Ninth Circuit, Petitioner cites Rush, which

pre-dates Burger.

In Rush, the Ninth Circuit

considered the constitutionality of state regulations

allowing unannounced, in-person inspections of home

day cares at any time of the day or night. Although

the court noted that “the warrantless inspection of

family day care homes does not necessarily violate the

Fourth Amendment” because family day cares are

pervasively regulated, the court concluded that the

regulations at issue were “overbroad.” Rush, 756 F.2d

at 721. The court reached this conclusion based on (1)

the nature of the regulations, which authorized

“unannounced visits to family day care homes at any

time”; and (2) “the peculiar nature of family day care

homes,” which do not host children at all hours and in

all areas of the home. Id. This approach and holding

are entirely consistent with courts’ subsequent

application of the Burger test, specifically the third

Burger test criterion that assesses whether the

regulation performs the basic functions of a warrant.

The third Burger test criterion acknowledges that a

regulation authorizing administrative searches of a

closely regulated industry may be overbroad on its

particular facts and thus violate the Fourth

Amendment. See Burger, 482 U.S. at 703. Contrary to

Petitioner’s assertion, Rush did not apply some

doctrinally distinct “common-law trespass test” that

meaningfully conflicts with the Burger analysis.

The First Circuit reached its conclusion that the

DMR Rule does not violate the Fourth Amendment

based on its own specific analysis of what the Rush

court might have called “the peculiar nature of the

lobstering industry.” For example, the First Circuit

noted that there are few temporal limitations on when

lobster fishing can occur. Pet. App. 29a. This lack of

temporal limitation contrasts with the licensed home

day cares in Rush, which had regular and strictly

delineated business hours. See Rush, 756 F.2d at 72122. The First Circuit also based its decision on the fact

that the electronic tracking devices “relay time and

position data only, and the Rule does not authorize the

search of any vessels more broadly.” Pet. App. 29a. In

contrast, Rush invalidated the regulatory scheme to

the extent that it permitted general searches of the

entire residence, including areas never used for the

day care business. See Rush, 756 F.2d at 721-22.

Petitioner claims that a private residence is “like [his]

fishing boat” and is “shielded from a warrantless

trespass” when not being used for lobster fishing. Pet.

17. But a vessel at sea, unlike a home, a personal

vehicle on a highway, or a pedestrian on a public street,

can be stopped and boarded by federal and state

officials for document checks and safety inspections at

any time, even without reasonable suspicion. See Part

II.B supra. Any differences between the outcome in

this case and in Rush, then, are the result of different

courts assessing different facts, not an indication of a

circuit split on Fourth Amendment law.

For the Sixth Circuit, Petitioner cites Taylor II. In

that case, however, the Sixth Circuit addressed

“trespass” only in the context of determining that tire

chalking of cars parked on a public street constitutes

a “search” within the meaning of the Fourth

Amendment. Taylor II, 11 F.4th at 487. The Taylor II

court then declined to apply Burger because it

concluded that municipal parking is not a closely

regulated industry. Id. at 488. Taylor II provides no

support for the existence of a “common-law trespass

test” that modifies or conflicts with the Burger test.9

Further, as previously noted, the First Circuit’s

decision did not discuss either Rush or Taylor II in

relation to a purported trespass test, likely because

Petitioner did not argue that the First Circuit should

follow either case and did not make any trespassspecific argument to that court. It is evident from the

court’s opinion that the First Circuit did not consider

itself to be grappling with any issue that had been

addressed by the Ninth or the Sixth Circuit.

Finally, contrary to Petitioner’s assertion, neither

the First Circuit in this case nor the Tenth Circuit

Taylor II’s distinction between a car parked in a junkyard

and a car parked on a public street only illustrated that the close

regulation of a junkyard does not extend to any car, whether or

not it is part of a junkyard operation. The DMR Rule expressly

requires the tracking device to be “installed aboard the permitted

vessel listed on [the lobsterman’s] license.” Pet. App. 153a (ch.

25.98(C)(1)).

have held that “the administrative search doctrine

displaces the Fourth Amendment’s protection from

trespass.” Pet. 3. In Johnson v. Smith, 104 F.4th 153

(10th Cir. 2024), the Tenth Circuit merely noted that

once a “search” within the meaning of the Fourth

Amendment has been identified, whether under the

Jones or Katz conception of a search, and once it has

been established that the premises searched are part

of a closely regulated industry, the Burger test must be

applied to determine whether that search is reasonable and thus consistent with the Fourth Amendment.

See Johnson, 104 F.4th at 167. As explained above,

this is a correct statement of Fourth Amendment law,

not an indication of a circuit split.

In short, none of the decisions cited by Petitioner

demonstrate a circuit split or show that the First

Circuit’s application of Burger in this case was

inconsistent with the decisions of other circuits.

B. The First Circuit’s decision does not

conflict with decisions of the Ninth and

Sixth Circuits with respect to the

reasonableness

administrative

searches of closely regulated industries.

Petitioner also attempts to identify a circuit split

regarding “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.” Pet. 22.

He asserts that some courts “apply Jones’s trespass

to property protections to administrative searches in

closely[] regulated industries” and some do not.

Pet. 25. This assertion, however, is rooted in a

misconception of this Court’s Burger precedent and

governing Fourth Amendment law. Although this

Court in Burger, and other courts later applying the

Burger framework, have noted that there is a reduced

expectation of privacy in commercial premises in

closely regulated industries, courts do not apply the

“Katz test” or the “Jones test,” as Petitioner contends,

when assessing the reasonableness of a search.

Rather, courts apply the Burger test, including the

consideration of whether the search regime “perform[s]

the two basic functions of a warrant.” Burger, 482 U.S.

at 703.

As noted above, the First Circuit in this case did not

apply the “Katz test” or ground its conclusion that the

DMR Rule is consistent with the Fourth Amendment

solely on Petitioner’s expectation of privacy in his

commercial lobstering vessel. It also did not, as

Petitioner claims, “decide[] [that] the common-law

trespassory protections from case like Carpenter and

Jones apply only in criminal cases.”

Pet. 22.

Petitioner’s argument to the First Circuit regarding

Carpenter and Jones did not mention “common-law

trespassory protections” and focused instead on the

nature of the technology used in location tracking,

claiming that searches using such technology require

a warrant. No. 25-1007, Appellant’s Br. at PageID

# 27-29. The First Circuit accordingly said nothing

about common-law trespass and simply noted that

Petitioner’s attempts to draw a direct analogy between

government searches for evidence of criminal activity

and the DMR Rule were not persuasive. Pet. App. 28a

n.18.

None of the Ninth Circuit decisions cited by

Petitioner apply Jones and Katz to the Burger analysis

of whether an administrative search of a closely

regulated industry is reasonable, as Petitioner

suggests. Pet. 25-27. Rather, they all discuss Jones

and Katz in the context of deciding whether a Fourth

Amendment search occurred in the first place. In Patel

v. City of Los Angeles (Patel I), 738 F.3d 1058 (9th Cir.

2013) (en banc), aff’d, 576 U.S. 409 (2015), the court

discussed Jones and Katz in determining that the

challenged action constituted a search. 738 F.3d at

1061-63. Because the court rejected the idea that the

industry in question was closely regulated, it had no

reason to explore the applicability of Jones and Katz to

the Burger test. Id. at 1064 n.2. Lyall v. City of Los

Angeles, 807 F.3d 1178 (9th Cir. 2015), involved a

warrantless search by police looking for criminal

suspects; the case did not involve administrative

searches, and the court discussed Jones and Katz only

in response to the government’s argument that no

search had occurred. See 807 F.3d at 1185-86.

Similarly, the concurring opinion in Hotop v. City of

San Jose, 982 F.3d 710 (9th Cir. 2020), cited Patel I,

Jones, and Katz solely to explain why the concurring

judge would have held that the “City ha[d] conducted

no Fourth Amendment search.” Hotop, 982 F.3d at 719,

721-22 (Bennett, J., concurring in part and concurring

in the result).

For the Sixth Circuit, Petitioner turns again to

Taylor II. Pet. 27-28. The court in Taylor II, however,

side-stepped the argument that it should consider only

trespass concepts and not expectations of privacy for

“property[] based” Fourth Amendment searches after

Jones. See 11 F.4th at 487 n.2, 488. The court

“decline[d] to resolve this argument” and, instead,

concluded that the industry in question (municipal

parking) was not a closely regulated industry, so

Burger did not apply. See id. Therefore, contrary to

Petitioner’s contention, Taylor II does not demonstrate

that the Sixth Circuit applies Jones and Katz to

determine whether an administrative search of a

closely regulated industry is reasonable.

The other district court and circuit court cases cited

by Petitioner similarly address whether a “search”

under the Fourth Amendment occurred, not the

application of Jones or Katz to administrative searches

of closely regulated industries. See Taylor v. San

Francisco Sheriff’s Dep’t, No. 23-CV-04121-DMR, 2024

WL 2808650, at *3 (N.D. Cal. May 31, 2024) (“To assert

that her Fourth Amendment rights were violated,

[p]laintiff must show that her ‘persons, houses, papers,

[or] effects’ were subject to an ‘unreasonable search[ ]

and seizure[ ].’”) (citing the Ninth Circuit’s quotation

of the Fourth Amendment in Patel I, 738 F.3d at 1061);

United States v. Sayonkon, No. 16-CR-0265, 2017 WL

11426870, at *8 (D. Minn. Jan. 24, 2017) (citing Patel

I’s discussion of what constitutes a Fourth Amendment

search); Newman v. Moore, 743 F. Supp. 3d 62, 68 & n.1

(D.D.C. 2024), aff’d, 151 F.4th 472 (D.C. Cir. 2025)

(same). Petitioner’s contention that “[o]ther circuits

[have] updated the Burger test on their own” to

consider trespass principles, Pet. 28, is not borne out

by the cited case law.

In sum, Petitioner has not shown that the First

Circuit’s decision in this case conflicts with other

circuits’ decisions regarding application of the Burger

test to administrative searches of closely regulated

industries.

IV. This case is a poor vehicle for reviewing

the Question Presented.

Contrary to Petitioner’s suggestion, this case is

neither procedurally “clean” nor a vehicle for resolving

any issue of nationwide importance advanced by

Petitioner and amici.

Pet. 30-33.

Petitioner’s

arguments regarding application of a “common-law

trespass test” to administrative searches of closely

regulated industries are unpreserved; they were not

raised below and therefore were not addressed by the

lower courts. See Part I supra. What is more,

Petitioner fails to articulate what a “common-law

trespass test” would look like in the context of

assessing the reasonableness of already identified

searches in a closely regulated industry. It is entirely

unclear what it would mean for a court to apply such

a test to the Burger analysis, how doing so would

materially change the outcome in this case, or how it

would clarify existing Fourth Amendment jurisprudence for future cases. Petitioner invites confusion,

not resolution.

Petitioner argues that the Court should be

concerned by “a larger trend of oversight agencies

trying to force boat owners to install GPS trackers.”

Pet. 30-31. As Petitioner correctly notes, other

Commission member states have adopted lobster

vessel tracking regulations similar to the DMR Rule,

consistent with Addendum XXIX. Id. Besides these

similar regulations, however, Petitioner identifies only

one other instance of a vessel tracking regulation, a

dissimilar rule concerning private boats that

occasionally offer chartered recreational fishing

services. Id.; see Mexican Gulf Fishing Co. v. United

States Dep’t of Com., 60 F.4th 956, 960-61, 970 (5th Cir.

2023). These few instances hardly show a larger

pattern of government agencies requiring boat owners

to install tracking devices.

Petitioner also suggests that the Court should grant

his Petition to address what industries may be deemed

“closely regulated” for purposes of Fourth Amendment

analysis. Pet. 32-33. In this case, however, Petitioner

conceded in the district court that commercial lobster

fishing is a closely regulated industry for purposes of

applying the Burger test. Pet. App. 104a & n.19.

Neither the district court nor the First Circuit,

therefore, ever considered the scope of what

constitutes a “closely regulated industry” or the factual

nature of commercial lobster fishing regulation. Id. 8a,

12a-14a. To the extent Petitioner contends that courts

in other cases may have overly expanded the scope of

the “closely regulated industry” category, this case is

not a clean vehicle for addressing that legally and

factually complex question.

Amici, for their part, raise several hypothetical

questions about the application of Burger that were

either not argued below or are not implicated by this

case. The question of how Burger should be applied to

family farms, for example, would not be clarified by

this Court’s consideration of the factually distinct and

factually specific application of Burger to commercial

lobster fishing vessels at sea.

In sum, the Petition presents a variety of reasons

that weigh against granting it: unpreserved issues not

addressed below; hypothetical questions that would

not affect the case at hand; and arguments grounded

in fundamental misconceptions of applicable precedent. The Court should decline Petitioner’s invitation

to confuse, not clarify, its long-standing Fourth

Amendment jurisprudence.

CONCLUSION

For the foregoing reasons, the Petition for a Writ of

Certiorari should be denied.

Respectfully submitted,

AARON M. FREY

Attorney General, State of Maine

VALERIE A. WRIGHT

Assistant Attorney General

Counsel of Record

JACK DAFOE

Assistant Attorney General

OFFICE OF THE MAINE

ATTORNEY GENERAL

6 State House Station

Augusta, Maine 04333-0006

(207) 626-8800

valerie.a.wright@maine.gov

Counsel for Respondent

July 6, 2026

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.