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Search – GPS Tracking Device

U.S. v. Antoine Jones, USSC No. 10-1259, 1/23/12, affirming United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), reh’g denied sub nom. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010); effectively overruling State v. Sveum, 2009 WI App 81, ¶8

The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977) . We hold that the Government’s installation of a GPS device on a target’s vehicle, 2 and its use of that device to monitor the vehicle’s movements, constitutes a “search.”

Police attached a GPS tracking device on Jones’s vehicle in a public parking lot. Though the police had obtained a warrant for this action, “the Government has conceded noncompliance with the warrant and has argued only that a warrant was not required,” fn. 1. As the blockquote above indicates, the Court rejects that argument, thus effectively overruling this recent holding in State v. Sveum, 2009 WI App 81: “The State responds that no Fourth Amendment search or seizure occurs when police attach a GPS device to the outside of a vehicle while it is in a place accessible to the public and then use that device to track the vehicle while it is in public view.  We agree with the State. … We agree with the State that neither a search nor a seizure occurs when the police use a GPS device to track a vehicle while it is visible to the general public.” 2009 WI App 81, ¶¶1, 8. Aside: the court of appeals result (non-suppression) was affirmed by the Wisconsin supreme court, 2010 WI 92, but on different grounds, id. ¶3 (“We elect not to resolve the first issue, and assume, without deciding, that a search or seizure occurred in this case that required authorization by a warrant.”). This means that it is the court of appeals’ iteration in Sveum that is binding. Or, rather, was.

The Supremacy Clause, Art. VI Cl. 2, says you don’t have to wait for an appellate court to ceremonially dispatch the court of appeals holding in Sveum. State v. Jennings, 2002 WI 44, ¶¶3, 18, 252 Wis.2d 228,647 N.W.2d 142 (“the Supremacy Clause of the United States Constitution compels adherence to United States Supreme Court precedent on matters of federal law, although it means deviating from a conflicting decision of this court”; “all state courts, of course, are bound by the decisions of the United States Supreme Court on matters of federal law”). You don’t have to wait to argue Jones-type suppression, and you shouldn’t.

On to some of the larger details …

  • “The text of the Fourth Amendment reflects its close connection to property …. Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.” That is, even though police activity occurred in a public place, it amounted to a trespass – an invasion of Jones’s property rights:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. …

The Court, in brief, stresses “the significance of property rights in search-and-seizure cases”; restoring that significance is precisely what makes this decision so important (and divides the 5-Justice majority from the 4-Justice concurrence, not to say the Sveum court of appeals panel). In other words, the “reasonable expectation of privacy” test expanded rather than narrowed the proper test:

  • … Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” 506 U. S., at 64. As Justice Brennan explained in his concurrence in KnottsKatz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” 460 U. S., at 286 (opinion concurring in judgment). … Katz did not narrow the Fourth Amendment’s scope.

… [T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. …

It follows, then, that “(s)ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.” However: “We may have to grapple with these ‘vexing problems’ in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”

Bold prediction: this will prove the most-discussed, if not important, criminal case this Term. First reactions: Orin Kerr (“The New Doctrine of What is A Fourth Amendment Search“); more Kerr (“Three Questions Raised By The Trespass Test in United States v. Jones“); Tom Goldstein (“Reactions to Jones v. United States: The government fared much better than everyone realizes“); Mike Sacks (“Warrantless GPS Tracking Unconstitutional, Supreme Court Rules“). Goldstein argues that Justice Sotomayer’s concurrence is more aligned with the idea that the long-term monitoring violated Jones’s expectation of privacy than that a trespassory search violated his property interests. Justice Sotomayer’s concurrence is certainly crucial, if for no other reason than that it supplies the 5th vote, and should be closely inspected. The opening lines of the concurrence:

I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” Ante, at 6, n. 3. In this case, the Government installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones’ Jeep without a valid warrant and without Jones’ consent, then used that device to monitor the Jeep’s movements over the course of four weeks. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection. See, e.g., Silverman v. United States, 365 U. S. 505, 511– 512 (1961).

Her concurrence continues: “More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976). 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.” Does that skepticism represent support for a statist position, as Goldstein might have it (that is, a warrant isn’t required for installation or short-term monitoring)? Time will tell. Of course, it’s not as if the problem of revealing information to third parties didn’t percolate in a Paleozoic, pre-digital age: State v. Smith, 149 Wis. 2d 89, 92, 438 N.W.2d 571 (1989) (no reasonable expectation of privacy in conversations over a cordless phone, affirming trial judge’s ruling that “while Smith said he expected privacy, Smith had not read the manual [and] a reading of the manual would have led a reasonable person to conclude there was no assurance of privacy while using a radio broadcast transmitter such as a cordless telephone”). As someone has remarked, “This approach is ill suited to the digital age.” Whether it will be adopted for the digital age of course remains to be seen.

More: Margot Kaminski, “Three thoughts on U.S. v. Jones” nicely expresses the arguably narrow nature of the holding (“police don’t need to physically attach a tracker to your car to use GPS tracking. They can just turn on GPS trackers already in your car (OnStar) or on your person (cell phones)”). But Kaminski doesn’t quite share Goldstein’s certitude of government victory, even if she is alert to the possibility: “the most dangerous part of these opinions is not the majority’s decision about trespass, but Alito’s conclusion that Katz is tethered to evolving social norms, and his tendency to consequently defer to the legislature on these issues. … This angle on Katzis disturbing, because it conflates knowledge that one is being unreasonably surveilled with acceptance of that surveillance.” (Exhibit A: State v. Smith.) That is where the battle will be fought, but it has yet to be waged – which seems to be a principal point of Justice Sotomayor’s concurrence. Kaminski: “Sotomayor uses her concurrence to clearly signal to cops and judges. … This matters– and matters a lot– because in the interim cases, before another GPS case comes to the Supreme Court, judges are going to pay attention to Jones for any hints of a future outcome. And Sotomayor deliberately showed her hand.”

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