Today the Supreme Court in United States v. Jones decided that the District of Columbia’s Police Department’s attachment of GPS device to a suspected drug dealer’s car without a proper warrant violated the Fourth Amendment’s prohibition against unreasonable search and seizures. In overturning the conviction of Antoine Jones, who had received a life sentence for his alleged role in the case, the entire court was unanimous in agreeing that the conviction was unconstitutional but did so in three separate opinions. The way the Court split on the reasons why it should be overturned are to me more important and more telling that the decision itself.
Quick Facts: Antoine Jones is a nightclub owner in DC who DCPD suspected of running a narcotics ring. The police sought and obtained a warrant permitting them to attach a GPS device to his wife’s car and to store and collect the data for a month. The warrant was issued with two requirements: First that the device be affixed within ten days of the warrant and Second that the device be attached to the car while it was physically within the District of Columbia. The DCPD did neither, but still attached and monitored the GPS device for 28 days. They used the evidence that they uncovered through that tracking to indict and convict Jones. The lower court said no warrant was necessary as the monitoring did not amount to a search and no one had a reasonable expectation of privacy while driving on public streets. The intermediate appeals court disagreed and it went to the Supremes.
Main Opinion: Writing for the majority Justice Scalia did what he does best – relied on 18th century law. He insisted that all Fourth Amendment analysis has to harken back to the days of the Founding Fathers to determine whether under the analysis at that time, the new method of “searching” would constitute a search. He concluded the fundamental root of the Fourth Amendment was the importance of a person’s property and that any intrusion on that property was a trespass. Using trespass analysis, he reasoned that the police by placing the tracking device on the car, “trespassed” upon the property of Jones and that therefore, the Founding Fathers would have called that a search requiring a warrant. This opinion was joined in by Justices Thomas (of course), Roberts, Kennedy and Sotomayor (though she joined mostly in the result only and issued her own concurring opinion.
Alito’s concurrence: Judge Alito, while agreeing that the warrantless tracking was unconstitutional, refused to sign on to Scalia’s opinion and attacked it in a strongly worded separate opinion which was joined by Justices Ginsburg, Kagan and Breyer. He pulls no punches and says:
This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. . . .
This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.
That’s Supreme Court trash-talking right there, trust me. He went on to point out several other areas that marked the decision as one which is troubling and insupportable. He noted that since Katz v. United States federal courts including the Supreme Court, have essentially abandoned this ancient “trespass” analysis and instead relied upon a test enumerated in Katz based upon a person’s “reasonable expectation of privacy.” He also noted that under the Court’s majority opinion, if the government required manufacturers to install GPS technology in all cars, that no warrant would be necessary. He added that relying on property rights meant that each State might have a different result since marital property law in each State differs and courts would then have to analyze who owned the car. In fact, in the Jones’ case, the car was only transferred from his wife to him a few days before the device was put on. Alito said the result of the case should not turn on such a minor point. The issue, he said, is that while most people might be aware that you could be followed for a short while on a public street without a warrant, the average person would expect that if the government wanted to track your movements 24 hours a day for a month and also store and analyze the information gleaned from that tracking, that a warrant should be required. He said based on the facts in this case, the warrantless tracking for this period of time was an unconstitutional, unreasonable search of the defendant. This decision raises several problems (which Alito himself recognized). Courts would have to determine on a case by case basis just how long a tracking period would constitute a search. Also, since Alito stated that an investigation into a more serious offense may lengthen how long you could track without a warrant, courts would also have to look at the particular charge the defendant was facing to analyze whether it was justified. In the end, just like occurred in wiretapping, Congress should clear this up and pass a law requiring a warrant for all GPS tracking of criminal suspects.
Sotomayor’s Opinion: Judge Sotomayor took a highly unusual step and wrote an opinion that she recognized raised questions that need not be answered at this time. It was essentially an opinion that just let the Court and society know that new technology will force the country to perhaps re-examine some of the old rules about privacy. She starts out by saying that both of the other opinions are problematic – Scalia’s essentially ignores the expectation of privacy issue and rests too much on property rights while Alito’s ignores that invasion of property rights is still a fundamental principle in Fourth Amendment analysis. She states that since there was a clear invasion of Jones’ privacy rights (and therefore a clear violation of his expectation of privacy) the analysis need go no further. She then goes on to state that GPS tracking and new technologies may call upon us to rethink all of this. That it may still be unreasonable for the government to track us indefinitely even in situations where we are in the public and have no expectation of privacy. Its such a well-written powerful warning of how far this tracking can go that I won’t try to paraphrase it:
Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society…. 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, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance”
She even goes on to state that with all of us going online to do our banking and communication that perhaps the mere fact that we are sharing private information with some individuals does not mean we do not expect it to be private from the government or others:
I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection. See Smith, 442 U. S., at 749 (Marshall, J., dissenting) (“Privacy is not a discrete commodity, possessed absolutely or not at all. Those who disclose certain facts to a bank or phone company for a limited business purpose need not assume that this information will be released to other persons for other purposes”); see also Katz, 389 U. S., at 351–352 (“[W]hat [a person] seeks to preserve as private,even in an area accessible to the public, may be constitutionally protected”)
While she correctly notes that these difficult issues need not be addressed in this case, it is great that she decided to essentially think aloud for us to see how she is concerned about where this very public society is heading if the Court and/or Congress don’t carve out some new “expectations of privacy” for us. This forward-thinking opinion is in direct contrast to Scalia’s decision which remains mired in ancient premises and tries to place the 21st Century into the minds of our 18th century Founding Fathers. A wise Latina indeed.