I've posted before about the issue of GPS tracking and tracking devices. Well, the Supreme Court has now handed down its long awaiting decision in U.S. v. Jones. But a divided Court left the law is murkier than ever.
In Jones, federal agents suspected the defendant of drug trafficking. In order to prove it, they decided to secretly place a GPS tracking device on his car. They then used this to track his whereabouts 24/7 for a month. They didn't have a warrant
Amid a disagreement about what a privacy invasion meant in 1791 (when the Bill of Rights was adopted), but with a strong embrace of privacy in the electronic age, the Supreme Court on Monday suggested that police
probably should get a warrant before they physically attach an electronic monitor — like a GPS — to a car or truck. But the Court left some doubt about how long such a device may be used, and about what kinds of suspected crimes allow its use. In effect, the Court seemed to have launched years of new litigation to sort it all out. The choice Monday was between a minimalist approach, one in the middle, and an expansive view of Fourth Amendment privacy. Each had support among the Justices, but counting the votes was a bit tricky.
The most sweeping argument about constitutional protection against government monitoring with sophisticated new devices came in an opinion by Justice Sonia Sotomayor, but that represented — at least for now — only her view; no one else joined her opinion. The narrowest view (which Sotomayor said she also supported, at least this time) came in the opinion for the Court by Justice Antonin Scalia, and that is the five-vote result that clearly put police and federal agents on notice that it would be smart to get a warrant before they attach a monitoring device to a vehicle during a criminal investigation. Approximately in the middle was the view of Justice Samuel A. Alito, Jr., which attracted perhaps four-and-a-half votes — the half-vote being that of Sotomayor, who would have gone further.
The Court in recent years has shown some concern about how new technology may threaten traditional personal privacy, while at the same time indicating that it wants to proceed with caution in crafting hard-and-fast constitutional limits on such potentially Orwellian devices. Jones was the Court’s first look at the Fourth Amendment implications of police use of the Global Positioning System. The use of GPS tracking in law enforcement has grown rapidly--the Maricopa County Sheriff's Office concedes they use it frequently--and the Court’s new ruling showed a strong sense of the potential social cost of its unrestricted use.
The Court flatly rejected the government’s argument that it was simply not a search, in the constitutional sense, to physically — and secretly — attach a small GPS tracker on the underside of the car used by a man, Antoine Jones, who was a principal target of an investigation into a drug-running operation in Washington, D.C., and its suburbs. The device was installed without a warrant (one had been issued, but it ran out before it was put on the Jeep Cherokee and, in any event, it was limited to Washington, and the device was installed in Maryland). And, once installed (and serviced when the batteries ran down), it remained on the Jeep around the clock for 28 days. The 2,000-page log of where Jones had driven the Jeep was used to convict him of a drug-trafficking conspiracy, leading to a life prison sentence and an order to forfeit $1 million in illegal drug proceeds. One place where the device showed Jones had visited was a “stash house” where $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of crack cocaine turned up.
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.
The lead opinion was authored by Justice Scalia and signed by three other justices, with a separate concurring opinion by Justice Sonia Sotomayor. The lead opinion held that by placing the GPS device on the outside of the vehicle, the agents had committed "tresspass to chattel," which required a warrant to be lawful. The lead opinion did NOT say that the 24/7 tracking itself required a warrant. This is an important distinction, as we shall see.
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.” Probable cause, of course, is the standard for a search warrant. In other words, the prosecution argued that as long as the cops could have gotten a warrant, it doesn't matter that that
didn't. Don't laugh--there is a long-established "automobile exception" to the search warrant which says precisely that. The main opinion, by Justice Scalia, didn't say this argument was wrong. Justice Scalia said, however, that 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.
The minority concurring opinion, authored by Justice Alito and signed by three other justices, agreed that the search violated the Fourth Amendment, but for a different reason. Alito said that the warrantless 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.” But it didn't say how or where the line should be drawn. It is important to note that the Court has always said that one does not have a right to privacy in one's movements in public; that's why the police can follow you around or stake out your home or business, without a warrant. But as a practical matter, that sort of thing just can't be done 24/7 for days or weeks at a time. At some point, Justice Alito said, such 24/7 surveillance becomes a problem. But when? He didn't say.
When, as in this case, there is a four-four split in the Supreme Court, the separate opinion of the fifth justice becomes the most critical, because it is the decisive vote. This time, that vote was case by Justice Sotomayor.
Justice Sotomayor interpreted the Court’s ruling--the Scalia opinion--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.
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 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.” That is a big deal: think of how much information about yourself is in the hands of your ISP or cell phone carrier. Or Google. Or Facebook. Or Dropbox. Or your financial institutions. Until now, the Court has always said that the Constitution does not require the government to have either your permission or a warrant to access such information. Essentially, such information is the government's for the asking. Nothing you can do about it.
Justice Scalia, of course, is an "originalist"; he (along with Justice Thomas) believes the Constitution means exactly what the Founding Fathers though they were saying in 1791 (or whenever); no more and no less. Every Constitutional scholar agrees that "original intent" should be the starting point of analysis. Justice Scalia thinks it should be the ending point as well. The criticism of this approach is that it makes the Constitution that is more divorced from reality with each passing day (for instance, Justice Scalia doesn't think there is anything unconstitutional about laws which discriminate against women, because the Founding Fathers certainly did not intend to prohibit such discrimination).
In contrast is Justice Alito’s concurring opinion, representing the views of himself and three other justices. He rejected the idea that it was unconstitutional to attach the GPS device. Instead, he thinks it is the tracking which violates the Constitution. Alito 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. Alito believes they do; Scalia leaves that issue open.
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. But who knows.
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.
This only sounds complicated and confusing because it is. So if you are charged with state or federal crimes in the Phoenix area--whether it's
white collar crimes, or anything else--you need an experienced
Phoenix criminal defense attorney in your corner.
Contact us right away for a free consultation.