Feb. 15, 2012 – The U.S. Supreme Court recently limited police authority to use Global Positioning Systems (GPS) when tracking individuals. Perhaps what makes the decision a “landmark” case is not the decision itself, but the issues left open in this digital age.
In U.S. v. Jones, 565 U.S. __ (2012), the Court unanimously ruled that officers of an FBI and D.C. Police task force violated the Fourth Amendment when they attached a GPS device to defendant Antoine Jones’ car and collected data on his whereabouts for 28 days.
Jones, a nightclub owner in D.C., was under suspicion of trafficking and conspiracy to traffic cocaine. Police attached the GPS to Jones’ vehicle in a public parking garage. Police had a warrant to attach the GPS, but it expired before installation, and they attached it in a jurisdiction not covered by the warrant. Thus, police installed the GPS device without a warrant.
Jones filed a motion to suppress the evidence obtained through the GPS device. The federal district court only suppressed data obtained while Jones’s car was parked at home.
The other GPS data, which implicated him in the crimes charged, was admissible, the district court concluded, because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”1
The U.S. Court of Appeals for the D.C. Circuit overturned the conviction, concluding the police’s use of the GPS device violated Jones’ Fourth Amendment protection against unreasonable searches and seizures, and thus the evidence obtained from the GPS was inadmissible.
The Supreme Court unanimously agreed that police violated the Fourth Amendment. But the majority left the door open for future issues relating to a person’s expectation of privacy in a highly digital world, including whether a warrant is always required in GPS cases.
Installation of GPS device was a “search”
The Fourth Amendment to the U.S. Constitution protects “persons, houses, papers, and effects,” from unreasonable searches and seizures.
The U.S. Supreme Court majority – Justice Scalia (author), Chief Justice Roberts, Justice Kennedy, Justice Thomas, and Justice Sotomayor – decided that physically installing a GPS device on someone’s car and using it to monitor movements is considered a “search.”
According to Dean Strang, a criminal defense attorney at Hurley Burish & Stanton S.C., Madison, the Jones decision means police will always need probable cause to install a GPS device.
“When there is no ‘search’ within the meaning of the Fourth Amendment, there is no probable cause requirement for police intrusion,” said Strang, who represented the defendant in the GPS case of State v. Sveum, 2010 WI 92 (July 20, 2010), decided by the Wisconsin Supreme Court.
Whether installing a GPS device on someone’s car in a public place is considered a “search” was a question left open by Sveum. In that case, police had a warrant. Jones forecloses any future argument that attaching a GPS to a car is not a search protected by the Fourth Amendment.
In Jones, the majority focused on the “physical intrusion” that took place. “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information,” wrote Justice Antonin Scalia.
The majority rejected the government’s argument that a vehicle’s exterior is somehow not protected when “thrust into the public eye,” noting the officers did more than inspect the vehicle. “By attaching the device to the Jeep, officers encroached on a protected area.”
In focusing on the physical intrusion aspect, the majority departed from a line of cases determining that the Fourth Amendment protects a person’s “reasonable expectation of privacy.” This departure results in a narrow ruling based on property rights.
It is this narrow property-based ruling that irked concurring justices. In a concurring opinion by Justice Alito – joined by Justices Ginsberg, Breyer, and Kagan – a minority agreed that police violated Jones’s Fourth Amendment rights, but disagreed on the correct analysis.
“[T]he Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked,” Justice Alito wrote.
Is a warrant necessary in all GPS cases?
The Jones court did not decide whether the 28-day “search” was reasonable – despite the absence of a warrant – because the government did not previously raise the issue. That is, the government forfeited the right to argue that “probable cause” and “reasonable suspicion” were enough, under the circumstances, to make a physical intrusion reasonable without a warrant.
That means the Court left open the question of whether a warrant is actually required to install a GPS monitoring device on a target’s vehicle, if the search is otherwise reasonable.
Even warrantless “searches” can be remedied with exceptions, according to Strang and Wisconsin Assistant District Attorney Dan O’Brien, who represented the state in Sveum.
“The police will either need a search warrant from a judicial officer or an applicable exception to the Fourth Amendment’s warrant preference,” Strang said.
For instance, is it still a “search” under the Fourth Amendment if police enlist a target’s cell phone provider, without a warrant, in order to track a suspect through cell site location technology? That’s an issue currently pending before the Wisconsin appeals court in State v. Subdiaz-Osorio, 2010A3016.
The Jones decision does not seem to prohibit the state from arguing the defendant did not have a reasonable expectation of privacy in the movement of his car on public highways, or that “exigent circumstances” provide an exception to the warrant requirement. In Subdiaz-Osorio, police believed the murder suspect was trying to flee the country, and wanted to obtain his location quickly.
“I do not believe that Jones would prohibit warrantless ‘exigent circumstances’ searches,” said O’Brien, who is representing the state in Subdiaz-Osorio and has filed an appellate brief.
What if you take away the physical intrusion?
The majority’s opinion in Jones suggests that future cases involving intrusions that are not physical in nature will be subject to the “reasonable expectation of privacy” test.
“Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis,” wrote Justice Scalia, referring to Katz v. United States, 389 U.S. 347 (1967), which recognized that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” regardless of whether a physical intrusion has occurred.
“The outcome of such a future GPS tracking case seems to me very uncertain, and I would not bet all my chips on either the law enforcement side or the individual privacy side,” Strang said.
Using a reasonable expectation test, the Jones majority suggests, may produce a different result, because police do not generally violate the constitution when performing traditional surveillance to acquire information that is cheaper to acquire using a GPS device.
“It may be that achieving the same result through electronic means, without any accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question,” Justice Scalia wrote.
Advancing technology and the Fourth Amendment
Sotomayor, along with Justice Alito’s concurrence, foreshadow the types of issues that will arise in future cases that do not involve a physical intrusion, like Subdiaz-Osorio, such as cases where police access GPS tracking devices that are already installed in vehicles or in Smartphones.
Justice Sotomayor agreed with the majority that a physical intrusion upon property, at a minimum, rises to the level of a “search” under the Fourth Amendment. And she agreed that Katz’s “reasonable expectation of privacy test” merely augmented, but did not displace, those cases that find Fourth Amendment violations based on a “trespass” to property.
But Sotomayor noted that future cases may involve GPS surveillance with no physical intrusion at all. “In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance,” she wrote.
Meanwhile, four justices (through Alito’s concurrence) would abandon the trespassory test altogether in cases of physical intrusion and focus on an individual’s reasonable expectation of privacy. Under that test, police still violated Jones’s Fourth Amendment rights, they argued.
Thus, in cases where police have not used a “physical intrusion” to install a GPS device, one’s “reasonable expectation of privacy” may depend on the length of surveillance. And it may depend on the wealth of data that police can acquire through GPS monitoring.
“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,” Justice Sotomayor wrote.
Four justices agreed that police violated Jones’s Fourth Amendment rights, not because of a physical intrusion, but because the monitoring went on too long.
Alito’s concurrence noted that the line was surely crossed before the four-week mark, but other cases may be different. “[S]hort term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable,” Alito wrote, suggesting that warrantless GPS monitoring may be reasonable in certain cases.
However, Alito’s concurrence also suggests that Congress may be better suited to decide privacy issues related to rapid technological changes. “In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative,” he wrote.
He noted that Congress and most states do not have GPS tracking legislation as it relates to law enforcement. Wisconsin does not statutorily regulate GPS monitoring by police.
By Joe Forward, Legal Writer, State Bar of WisconsinRelated
Endnotes
