Tuesday, January 31, 2012

U.S. v. Jones: Decision Declaring Use of GPS Tracking a Search Leaves Some Unanswered Questions

On January 23, 2012, the United States Supreme Court unanimously held that the attachment of a Global Positioning System (GPS) device to a vehicle utilized to monitor a vehicle’s movements on public streets and obtain data for investigative purposes constitutes a “search” under the Fourth Amendment of the United States Constitution.  Justice Scalia delivered the opinion of the Court, stating that in this case, “the government physically occupied private property for the purposes of obtaining information.” 

In this case, the government (joint investigation conducted by FBI and Metropolitan Police Department) obtained a search warrant to install a GPS tracking device on the car Jones drove, but was registered to his wife.  Eleven days after the warrant expired, the government actually attached the GPS tracker to Jones' vehicle in the state of Maryland, and not the District of Columbia where the warrant was obtained.  The government tracked the vehicle for twenty-eight days and produced over two thousand pages of data.  Jones was subsequently indicted for drug trafficking conspiracy charges.  In a motion to suppress the evidence obtained from the surveillance, the District Court suppressed the GPS data obtained while the vehicle was parked at Jones’ residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when Jones drove the vehicle on public streets.  Jones was convicted and the D.C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.   
Justice Scalia opined, the Fourth Amendment was tied to common law trespass until the middle of the twentieth century when the Court declared in Katz v. U.S. that the Fourth Amendment protected “people, not places.”  To determine whether a search within the meaning of the Fourth Amendment occurs, the Court has applied the test articulated in Justice Harlan’s concurrence Katz, which states.  According to this test, the governmental activity must offend an individual’s manifestation of a privacy interest, and the privacy interest invaded must be one that society is prepared to accept as reasonable or legitimate.

The government in U.S. v. Jones, argued that under Katz, no search of the vehicle occurred since Jones had no reasonable expectation of privacy in the area of the underbody of the vehicle accessed by the government agents nor the public roads of which the vehicle traveled on which were visible to all.  The Court decided to not entertain the government’s contentions, explaining that Jones’ Fourth Amendment rights “did not rise or fall with the Katz formulation.”  Instead, the Court found it necessary to look at the case historically and what the Fourth Amendment first set out to protect – “persons, houses, papers and effects” – with a deeply rooted concern of the government’s trespass upon those areas.  The Court expressed that Katz did not narrow the Fourth Amendment scope; rather, it elaborated in circumstances where a physical trespass had not occurred. 

Justice Sotomayor concurred and agreed with the majority that a violation of the Fourth Amendment occurred.  She explained that Katz enlarged the scope of the Fourth Amendment, but did not diminish the trespasser analysis.  Justice Sotomayor further stated that in a future case, it might be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. 

Justice Alito concurred, along with Justice Ginsburg, Justice Breyer, and Justice Kagan, but disagreed with the majority’s analysis of the issue, and expressed that the majority was ironically analyzing a twenty-first century surveillance technique using eighteenth-century tort law.  Justice Alito proposed that the analysis focus on whether Jones’ reasonable expectation of privacy was violated by the long-term monitoring of the movements of his vehicle.  Justice Alito’s question of how the majority’s approach would protect individuals if the federal government required or persuaded auto manufacturers to include a GPS tracking device in every car shows the Court’s split in reasoning. 

It seems the majority’s ruling leaves unanswered questions in the minds of citizens and law enforcement officials alike.  The majority’s focus of trespass leads one to question what happens when the government’s intrusion to access information involves no physical trespass.  A large amount of surveillance techniques utilized by government agents encompass no physical contact.  There are multiple issues which are not discussed in the opinion, that are likely to arise as a result.  First is the issue regarding exigent circumstances.  Should an exigent circumstance arise, will the government have to obtain a search warrant to track the movements of the suspect?  Time constraints in an exigent circumstance do not always allow for a warrant to be issued thus placing law enforcement behind in resolving a critical situation.   A second issue will likely arise when a government agent obtains a search warrant for the use of a GPS tracking device on a vehicle through a State.  Will the monitoring have to cease if the vehicle leaves the state in which the warrant was obtained?  Typically, search warrants obtained at a state level involve activity within that specific jurisdiction.  Lastly, since this ruling applies retroactively, what happens to all the criminal defendants convicted with the use of a warrantless GPS tracking?  If such criminal defendants’ defense attorneys did not raise the issue at trial, the issue is not appealable.  It seems this decision will bring much litigation, with new precedent to be set.  Meanwhile it leaves the government in a guessing game of what to do in cases of exigency where technology is the only way to track the movements of the suspect.

Diana Cobo
Blogger, Criminal Law Brief

Image by 3D King


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  2. It seems that the majority's reasoning, based on "eighteenth century tort law" will create some confusion for lower courts. Justice Alito's reasoning appears to be clearer and more workable.

  3. While I do think the majority's analysis, at first blush, took a departure from the direction of modern Fourth Amendment jurisprudence, I can also see how both forms of analyses can be squared together, given that Justice Scalia went to great lengths to emphasize that the decision was in no way rejecting the Katz test. While the decision may nevertheless create some confusion for lower courts, as Ryan alluded to, I am hopeful that the lower courts will flesh out the principles laid out in the majority opinion to create a workable test.

  4. I think GPS is quite a good tool to track vehicle and illegal activities..

  5. How do we know the Jones decision is retroactive?

    1. It seems to depend on whether there is precedent on tracking being permissible without a warrant in your jurisdiction. If yes then officers acted on good faith and evidence not thrown out, if no precedent, remand in light of Jones.

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