Decision below: 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)
1. [from Petition:] Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.
2. [added by Court:] Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
According to the lower court opinion, authorities obtained a warrant to install a GPS device within 10 days of the warrants’ issuance, but they didn’t do so until the 11th day, albeit on a public street. The Questions Presented thus relate (in a broad sense) to State v. Sveum, 2009 WI App 81, ¶8 (“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”), which the cert petition fails to note resulted in a supreme court decision, 2010 WI 92 (affirming without deciding whether a search or seizure occurred).
The lower court opinion attracted considerable attention at the time. Here’s Orin Kerr’s reaction to the cert grant: “I’m glad the Court granted in this case, and I’m also also glad they added the question on installing the device. … (Lower courts have uniformly held that installing the device is not a search or seizure, but I’ve never found their reasoning very persuasive.) … With the current Court, the better bet in any Fourth Amendment case is that the Government will win. But the added question makes this a particularly fascinating case to watch.” John Wesley Hall: “This will clearly be the biggest of the 2011-12 Term, and the biggest privacy case since 1967’s Katz.”
The Fourth Amendment was set up by the founding fathers for a reason. Probable cause and judicial review and protections from illegal search and seizure have to be maintained especially in an advanced society now with computers and satellites and other intrusive instrumentation. Never before in the course of history has so much technology existed that intrudes upon the privacy of the citizenry. The right of the courts and their duty to control this power is part of the right of judicial review set up all the way back to the Magna Carta and to Marbury v. Madison.