Setting the Stage for Big Changes to Fourth Amendment Searches

JURIST Guest Columnist Joshua Hausman, University of Pittsburgh School of Law Class of 2012, is a Managing Editor for the University of Pittsburgh Law Review and is a Teaching Fellow in the Marshall-Brennan Constitutional Literacy Project. He discusses the Supreme Court's decision in United States v. Jones and its possible ramifications on Fourth Amendment search jurisprudence...
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On Monday, the Supreme Court took a small but significant step towards reconciling the Fourth Amendment's protection against unreasonable governmental searches with the realities of modern surveillance technology. In the case of United States v. Jones, the Court unanimously held that the tracking of the defendant's automobile via a GPS device constituted a Fourth Amendment search. The Court affirmed the decision of the US Court of Appeals for the District of Columbia Circuit, which found that the search, conducted without a valid warrant, was unconstitutional. Though this decision is undoubtedly a victory for privacy rights, the actual holding itself is surprisingly narrow. The good news, however, is that at least five justices appear ready to reevaluate whether an individual may reasonably expect privacy from overly-intrusive governmental searches conducted via modern technology, particularly in cases in which the individual is under surveillance in a public setting.

The case presented defendant Antoine Jones, who in 2007 received a life sentence following his conviction for conspiracy to distribute, and possession with intent to distribute, cocaine and cocaine base in violation of federal law. At his trial, the government introduced as evidence data collected over a period of nearly a month which had been obtained through the use of a GPS tracking device. The GPS tracker had been placed on Jones's Jeep Grand Cherokee while it was parked in a public parking lot, and the battery on the tracker was replaced once during the period of surveillance in the same fashion. The data collected, consisting of Jones's location and movements, was used to connect Jones to a "stash house" containing the narcotics. However, the placement of the tracker and the surveillance that followed was conducted without a valid warrant. The US Court of Appeals for the District of Columbia Circuit reversed his conviction on the basis that the admission of this evidence, obtained without a warrant, violated the Fourth Amendment and the locational data should not have been admitted at trial.

At issue on appeal was whether the use of the GPS tracking device was a search to which the protections of the Fourth Amendment would apply in the first place. The Supreme Court agreed with the DC Circuit that a Fourth Amendment search had occurred, though the majority reached this conclusion in a rather unusual way. Justice Scalia, writing for the majority, reasoned that the placement and use of the GPS tracker on the automobile constituted a search because "[t]he Government physically occupied private property for the purpose of obtaining information." The surprise in this reasoning stems from the fact that, since 1967, courts have relied principally on the reasonable expectation of privacy test to determine whether a Fourth Amendment search occurs. Under that formulation, the protections of the Fourth Amendment apply whenever a person has (1) exhibited an actual expectation of privacy that (2) society can accept as reasonable.

By instead basing its opinion on the physical placement and presence of the GPS tracking device on the automobile, the Court breathed new life into the "common-law trespassory test," which, as emphasized by Justice Scalia, survived the ruling in Katz v. United States. Under this formulation, in addition to the reasonable expectation of privacy analysis, a Fourth Amendment search may occur in situations of "government trespass upon the areas ('persons, houses, papers, and effects') [the Fourth Amendment] enumerates." The government trespassed upon Jones's property by the physical act of placing and maintaining the GPS tracking device to collect information, and thus a Fourth Amendment search had occurred.

The holding in Jones is a good one, at least to the extent that it marginally expands the scope of surveillance methods to which the protections of the Fourth Amendment will apply. On the other hand, the holding itself is not quite a knock-out victory for the Fourth Amendment. As explained by Professor Orin Kerr on The Volokh Conspiracy, the Court did not actually hold that a warrant is required before a GPS device may be installed and used to track an automobile; it only held that a Fourth Amendment search occurred in such a situation. By failing to explicitly state that a warrant is required, the majority opinion seems to at least leave open the possibility that the placement and use of a GPS tracking device on an automobile may still be a reasonable search in some circumstances, even absent a valid warrant.

At the heart of the matter in Jones, however, is whether and to what extent an individual may reasonably expect to be free from surveillance given the ease with which it can be conducted and the extensiveness of the surveillance modern technology allows. By relying on the trespass theory, the majority let an opportunity to deal with this issue slip away, though Justice Scalia clearly acknowledged that the reasonable expectation of privacy test remains the appropriate analysis when a physical trespass upon property has not occurred. He even concedes that, although purely visual observation of an individual on public roads is constitutionally permissible, it may be the case that similar observation accomplished through electronic means is an invasion of privacy. The trespass analysis does not preclude such a finding.

The majority was able to reach a result favorable to privacy rights without rocking the Fourth Amendment boat too much. However, the concurring opinions show that at least five members of the Court are ready to tackle the issue at the heart of Jones now, and many on the Court are clearly contemplating the effect of the world of modern surveillance on the protections of the Fourth Amendment. During oral arguments last November, the character Big Brother from George Orwell's 1984, a dystopian novel about a society utterly crushed under the weight of an all-seeing, all-powerful and all-controlling government, was referenced six times. Justice Alito, concurring in Jones, offers a brief summary of the state of affairs:

Recent years have seen the emergence of many new devices that permit the monitoring of a person's movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movement of motorists ... Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car's location at any time ... [C]ell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use.
Although Justice Alito believes that the best approach to dealing with the privacy issues these new technologies present is legislative rather than judicial, he had no problem utilizing the reasonable expectation of privacy test to reach the same result as Justice Scalia's majority: the surveillance conducted on Jones was a Fourth Amendment search despite the fact that the surveillance occurred in a public setting. Though individuals may expect to be subjected to "relatively short-term monitoring" on public streets, the longer term monitoring of the GPS device at issue infringed upon Jones's privacy expectations. "[S]ociety's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual's car for a very long period." In short, despite the fact that Jones's movements were monitored in public, it was the extensive nature of the surveillance, made possible by modern technology, which resulted in a Fourth Amendment violation. Justice Alito's concurrence was joined by Justice Ginsburg, Justice Breyer and Justice Kagan.

Justice Sotomayor, who joined the majority because she believes in the trespassory test as an "irreducible constitutional minimum," also appears ready to reinforce an individual's right to privacy from the use of modern surveillance technologies. She emphasized that physical trespass will be unnecessary in many other cases of governmental surveillance. "With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS enabled smartphones." She agrees with Justice Alito that longer term GPS tracking will violate a reasonable expectation of privacy, but goes one step further. Due to the very nature of GPS tracking, which can reveal intimate personal details about an individual based on locations that individual may choose to visit, even short-term tracking is suspect from a Fourth Amendment perspective. Justice Sotomayor would even go so far as to reconsider the principle that an individual cannot have a reasonable expectation of privacy in information voluntarily disclosed to third parties.

Prior Supreme Court cases, sometimes referred to as the "beeper cases," have upheld the use of location tracking "beepers" to monitor defendants on public roadways from Fourth Amendment challenges. The Court has explicitly stated in prior cases that "[a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another." The concurrences in Jones show that changes may be in store. Five justices now believe that long-term GPS tracking in the public sphere, though "long-term" is left undefined, violates an individual's reasonable expectation of privacy. Justice Sotomayor believes that the very nature of GPS tracking can make even short-term surveillance subject to the Fourth Amendment, and those joining Justice Scalia's majority appear prepared to at least entertain the notion that such surveillance may, in some instances, infringe privacy in a public setting.

With modern technology making constant and complete surveillance of an individual possible as soon as that individual chooses to step out of his or her front door, it seems that it is indeed time to reevaluate when, and from what, a person's privacy is to be protected by the Fourth Amendment. The Court appears ready to deal with this issue, which will almost certainly be making another appearance before the Court in the near future. "The board is set, the pieces are moving. We come to it at last ... the great [Fourth Amendment] battle of our time."

Joshua Hausman holds an undergraduate degree in Political Science with a minor in Administration of Justice from the University of Pittsburgh. His legal studies have focused on constitutional law and individual liberties. He is the President of the Federalist Society chapter at the University of Pittsburgh.

Suggested citation: Joshua Hausman, Setting the Stage for Big Changes to Fourth Amendment Searches, JURIST - Dateline, Jan. 26, 2012, http://jurist.org/dateline/2012/01/joshua-hausman-jones.php.



This article was prepared for publication by Megan McKee, the head of JURIST's student commentary service. Please direct any questions or comments to her at studentcommentary@jurist.org

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