Wednesday, February 1, 2012

Warrantless GPS Tracking Unconstitutional

Last week, the United States Supreme Court made national headlines with its latest decision dealing with the Fourth Amendment and in doing so, demonstrated a return to the framers' original intent as it related to the definition of what is, and what is not, a search.

In United States v Jones, the defendant, among others, had been convicted of conspiracy to possess with the intent to distribute more than 50 grams of cocaine base and was sentenced to life imprisonment.  Part of the Government's case rested upon data it had acquired after investigators placed a GPS tracking device on the undercarriage of Jones's wife's car while it was parked in a public parking lot.  The agents had obtained a search warrant prior to the installation of the GPS device, however, the warrant authorized the placement within 10 days and in the District of Columbia.  The device was installed on the 11th day and in Maryland.  Therefore, the question became whether the agents needed a search warrant at all as the Government argued the warrant was unnecessary because the placement of the device on the outside of Jones's car and the subsequent monitoring of his whereabouts was not a search under the Fourth Amendment.  The District Court denied Jones's motion to suppress, but the DC Circuit reversed his conviction, holding that the placement of the device was a search.

Justice Scalia delivered the opinion of the Court and held that the warrantless intrusion onto Jones's property constituted a search, and, therefore, affirmed the DC Circuit Court.  Justice Scalia's opinion is very succinct.  By returning to 18th century property law, he reaffirmed the notion that the Fourth Amendment, though radically altered in Katz in 1967, still protects individuals from physical intrusion onto property they own or possess.  Basically, the Court stated that Katz had expanded the protections afforded by the Fourth Amendment, but it was never meant to supplant the original framers' intent that held "the property of every man so sacred, that no man can set his foot upon his neighbor's close without his leave."  The agents' act of going under Jones's car, affixing an electronic device to and then monitoring the car's whereabouts for the next 28 days was held to be such "a foot upon his neighbor's close."  Justice Scalia likened it to "a constable’s concealing himself in the target’s coach in order to track its movements," which undoubtedly would violate the Fourth Amendment.

However, Justice Scalia was not the only author of an opinion on this timely issue.  Though he was joined by Justices Kennedy, Thomas and Sotomayor and Chief Justice Roberts, Justice Sotomayor wrote a separate concurring opinion and Justice Alito, joined by Justices Ginsburg, Breyer and Kagan, also authored a concurrence.  Their main complaint?  The majority opinion was so limited as to provide no guidance to law enforcement in future cases or to the country's courts that will undoubtedly have to decide similar issues that do not involve a physical trespass.  For instance, Justice Sotomayor noted that "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."  Society's privacy expectations necessarily require an analysis of the surveillance under the Katz "expectation of privacy" test.

It is clear, however, that the Court's opinion last week, in my opinion, has enlarged the protection I would have thought the Court would have granted.  If an officer can stand outside a car and peer inside to gain evidence, or employ a small brigade of agents to follow a target and videotape his comings and goings, why is monitoring it from a computer in the agent's office any more of an intrusion?  Many of these questions will have to be answered in future opinions, but, for today, it is clear that the strict constructionists have again provided the criminal defense bar with ammunition to argue for broader Fourth Amendment protections.

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