United States Supreme Court
Attaching GPS Device to Car was a Search Requiring a Warrant
• JONES, ___ US ___, ___ SC2 ___, 181 LE2 945 (12):
In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force.
Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone. Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. A warrant issued, authorizing installation of the device in the District of Columbia and within 10 days.
On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. The device relayed more than 2,000 pages of data over the 4-week period.
The Government obtained a multiple-count indictment charging Jones and several co-conspirators with conspiracy to distribute cocaine. Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. It held the remaining data admissible, because “‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.'”
The United States Court of Appeals for the District of Columbia Circuit reversed, holding the data obtained by the GPS device violated the defendant’s 4th Amendment rights.
The United States Supreme Court granted certiorari and holds that this was a search, and did violate the 4th. But the way the opinions split up raises some questions.
The Court unanimously held that this constituted a 4th Amendment violation, but there were different theories employed. I can’t improve on the following analysis, if you desire to go deeper into this. Citation is at the end of the clip:
Given the complexity of the voting pattern, and what the votes actually supported or failed to support, it nonetheless was clear that the Court was unanimous in one respect. It upheld the result — but no more than the result — of a D.C. Circuit Court ruling that Jones’s Fourth Amendment rights had been violated.
Justice Department lawyers, trying to salvage their case in the Supreme Court, had argued that the electronic monitoring of Jones — even if it was a search — did not violate the Fourth Amendment because the search was based upon “reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Justice Scalia said the Court would not consider that argument, since it was not raised in the lower courts and the D.C. Circuit did not deal with it. “We consider the argument forfeited,” Scalia wrote. That meant, in practice, that Jones’s conviction was overturned, as the D.C. Circuit had ruled.
Because Scalia made mention of that alternative argument, however, it appeared likely that federal prosecutors will attempt to use it in other cases involving the use of the GPS, when the investigators had not obtained a warrant. Some caution might be in order, though, because Justice Sotomayor’s vote was necessary to make even that part of the Scalia opinion a majority-supported result, and her separate opinion might be read to raise some doubt about her enthusiasm for that argument.
Sotomayor interpreted the Court’s ruling as a narrow one, saying that it was limited to a conclusion that “the government’s physical intrusion on Jones’ Jeep” was a search under the Fourth Amendment. But she also noted that she agreed with the separate Alito opinion that the use of GPS technology over a prolonged period of monitoring will impinge — in at least some cases — on an individual’s constitutionally protected “expectation of privacy.”
Moreover, much of her opinion was a projection of her views on that privacy expectation in the face of such technology’s capacity to intrude. In a future case, she indicated, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on….I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse….”
She, her opinion indicated, would even go further, saying that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties…This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
Justice Alito’s concurring opinion, representing the views of himself and three other Justices, challenged the Scalia opinion as “unwise” for relying — in an originalist sense — on what constituted a “trespass” that invaded privacy at the time the Fourth Amendment was added to the Constitution in 1791 as part of the Bill of Rights. The Founding generation, Alito wrote, could not have imagined GPS technology. So, he argued, the ruling in this case should turn on the question of whether individuals have a “reasonable expectation of privacy” that could be compromised by the use of such devices.
There were two qualifications in the Alito opinion’s embrace of that approach. Such privacy would be intruded upon, he wrote, if there were “longer term GPS monitoring,” and that would be true for “most offenses” that were under investigation. Those two apparent limitations would seem to mean, in practice, that short-term GPS monitoring might not intrude on Fourth Amendment privacy, and the investigation by police and federal agents of some crimes with such a device might not, either. The opinion did not spell out what kinds of crimes would be serious enough to allow the use of a GPS device, remarking only that that might be the situation with “extraordinary offenses.” That might have been a reference to, say, terrorist crimes.
The Scalia and Alito opinions clashed, almost comically, over whether there was a 1791 equivalent of the kind of privacy invasion that GPS devices might threaten under a theory that they involved a “trespass” on private property. Back then, Scalia suggested, “a constable” might conceal himself “in the target’s coach in order to track its movements.” Alito countered that “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience” — a reference to the fact that, in the case before the Court, the monitoring went on 24 hours a day for 28 days.
The Scalia opinion had the support of Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Clarence Thomas, in addition to Sotomayor’s notation that she joined it. It thus did represent a majority declaration. No other Justice joined the Sotomayor concurrence. The Alito concurrence was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan.
CITATION:
http://www.scotusblog.com/2012/01/opinion-recap-tight-limit-on-police-gps-use/
Implications for California Law. It is the considered opinion of at least one astute analyst that Jones “wipes out” decisions to the contrary, where a GPS device placement, without a warrant, was held not to violate the 4th Amendment.
Of particular note is Zichwic, 94 C4 944 (02), which upheld the GPS search because the defendant was subject to a parole condition (which is, in effect, a permission for a warrantless search).
But in lengthy dicta, the court goes on to say:
If defendant was not subject to a parole search condition, we would conclude, on the record before us, that installing an electronic tracking device on the undercarriage of defendant’s truck did not amount to a search within the meaning of the Fourth Amendment.
Compendium Press 