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GPS Tracking? Not Without a Valid Warrant

February 19, 2012

On January 23 of this year, The Supreme Court of the United States came down with a long anticipated decision addressing major issues relating to privacy rights. The justices unanimously invalidated a drug conviction against Antoine Jones, a D.C. nightclub operator, stating that the police in the investigation violated his Fourth Amendment Constitutional rights when they attached a GPS tracking device to his wife’s car without a valid warrant.

Investigators were looking into Jones’ activities, suspicious that he was involved in a powder and crack cocaine ring. They obtained a valid warrant from a federal district court judge, permitting them to secretly install a GPS tracking device on a Jeep Grand Cherokee registered to Jones’ wife. However, their execution of the warrant created some serious concerns.

Both sides agreed that the warrant was not executed properly. Investigators failed to install the tracking device within the 10-day period allotted in the warrant. Furthermore, investigators installed the device in the car, in suburban Maryland, outside of District of Columbia where the warrant was issued. Despite conformity with the requirements of the warrant, investigators tracked Jones’ activities for four weeks, eventually obtaining enough information to link him to a drug “stash house.”

After being acquitted of numerous other charges, Jones was convicted in a second trial of “conspiracy to distribute 5 or more kilograms of cocaine and 50 or more grams of cocaine base.” The U.S. Court of Appeals for the District of Columbia Circuit overturned the conviction, stating that Jones had a reasonable expectation of privacy in his activities throughout the course of the month he was being tracked. Such an invasive search required a valid warrant.

On November 8, 2011 the Supreme Court of United States justices took up the issue of whether the long term, precise GPS tracking of a criminal suspect without a valid warrant, violated the Fourth Amendment guarantee against unreasonable search and seizure. Although the justices were unanimous in their decision that such electronic monitoring without a valid warrant was a Constitutional violation, they could not have been more split in their reasoning. The decision was split 5-4.

Scalia wrote for the majority, echoing the sentiment that the Fourth Amendment’s protection of “persons, houses, papers, and effects, against unreasonable searches and seizures” would extend to private property such as an automobile.

Ever an “originalist,” Scalia relied on the history of the Fourth Amendment’s language, asserting that it was about protecting private property from searches. Emphasizing the relevant concern with property rights, he quoted Lord Camden, “[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.”  Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), Boyd v. United States, 116 U. S. 616, 626 (1886)). Therefore, even a small trespass in an attempt to obtain information amounted to a search under the Fourth Amendment.

Justice Alito wrote a concurring opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. He noted, “use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalog every single movement of an individual’s car for a very long period.”

Sotomayer, joined Scalia’s majority opinion, but in her own concurring opinion, echoed Alito’s disappointment that the court did not take a more definitive approach regarding the use of tracking devices and their implication on Fourth Amendment rights.

Interestingly enough, the government argued that there were no privacy rights at stake. They argued that under United States v. Knotts, information that is exposed to public view, such as Jones’ travels throughout the D.C. area, is unlikely to be considered private. Therefore, individuals should have no reasonable expectation of privacy. However, Jones’ lawyers reminded the court that the issue of 24-hour surveillance was left undecided in Knotts. 

Former federal prosecutor and executive director of the Center on the Administration of Criminal Law at New York University, Anthony S. Barkow filed an amicus brief for the government. In support of his stance, he indicated that “[i]n general, we are talking about activity that the police would be able to engage in anyway” (without a warrant).

Despite the unanimous decision, the aftermath of United States v. Jones raises some serious issues. How do we update our interpretation of the 4th Amendment to deal with rapid advances in technology?

(Read the opinion here