Jones: A Victory for Fourth Amendment Jurisprudence
Tuesday, February 07, 2012
JURIST Guest Columnist Corrie Thearle, University of Pittsburgh School of Law Class of 2012, is a Senior Editor for the Pittsburgh Journal of Environmental and Public Health Law . She discusses the Supreme Court's decision in United States v. Jones and its implications for Fourth Amendment search jurisprudence...
The Supreme Court's recent decision in United States v. Jones reinvigorated an area of Fourth Amendment jurisprudence that had lain dormant for almost half a century. Since 1967, courts have followed the two-part Katz v. United States test, which requires that a person must 1) have a subjective expectation of privacy that 2) society finds reasonable, in order to determine whether Fourth Amendment protection is triggered. In Jones, a case involving warrantless GPS monitoring of a vehicle, the Court surprisingly revived pre- Katz jurisprudence by using a common-law trespass approach. The Court held that the government's physical intrusion on an "effect" for the purpose of obtaining information constituted a search under the Fourth Amendment. Although not discarding the confusing, if not circular, "reasonable expectation of privacy" standard adopted in Katz, the Court re-established that the Katz test had been added to, but not substituted for, the common-law trespassory test. Thus, the Court reinforced a stable property based threshold, which courts can rest upon while treading the murky waters of a post- Katz Fourth Amendment analysis.
In US v. Jones, the Court considered whether the government violated Antoine Jones's Fourth Amendment rights by installing a GPS tracking device on his vehicle without a valid warrant and without his consent. In 2004, an FBI-Metropolitan Police Department Safe Streets Task Force began investigating two suspects, Antoine Jones and Lawrence Maynard, for narcotics violations. During the course of the investigation, law enforcement officials placed a GPS tracking device on Jones's vehicle, which tracked his movements twenty-four hours a day for twenty-eight days. The GPS device relayed more than 2,000 pages of data over the four-week period.
It should be noted that police initially obtained a warrant to install the device in Washington DC, for up to ninety days, and within ten days of the issuance of the warrant. However, the agents did not install the device until eleven days after the warrant was issued, and they installed it while the vehicle was parked in a public parking lot in Maryland. Agents also later replaced the device's battery while the vehicle was located in a different public parking lot in Maryland.
The government ultimately obtained a multiple count indictment charging Jones and several alleged co-conspirators with conspiracy to distribute and possession with intent to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base. The district court granted a motion filed by Jones to suppress evidence obtained through the GPS device only in part. The court suppressed the data obtained while the vehicle was parked in the garage adjoining Jones's residence, holding that the remaining data was admissible. Jones was found guilty and sentenced to life imprisonment.
Using the reasonable expectation of privacy test, US Court of Appeals for the District of Columbia Circuit reversed the conviction after finding that society would recognize Jones's expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements without a valid warrant defeated that reasonable expectation. The case was granted certiorari in June 2011, to resolve the issue of whether the warrantless GPS tracking of Jones's vehicle violated his Fourth Amendment rights.
Delivering the majority opinion, Justice Scalia began by reaffirming that a vehicle is an "effect," which is guaranteed protection from unreasonable searches and seizures under the Fourth Amendment. Scalia held that the physical intrusion conducted by government officials in this case was firmly within the bounds of what would have been considered a "search" under early Fourth Amendment protection. When the government obtains information by physically intruding on a constitutionally protected area, Jones's vehicle in this instance, a search has undoubtedly occurred. By reaffirming this property-based approach, Scalia held that Jones's Fourth Amendment rights did not rise or fall within the Katz formulation, thus removing the tricky question of whether Jones had a reasonable expectation of privacy with regard to the movements his vehicle made in public. Four other justices joined Scalia's opinion, including Chief Justice Roberts, Justice Kennedy, Justice Thomas and Justice Sotomayor.
Scalia further distinguished this case from post- Katz methodology by taking it out of the purview of United States v. Knotts and United States v. Karo , also known as the "beeper cases," which involved the tracking of beepers placed in containers used for drug manufacturing. In both cases, at the time the beeper was installed, the container belonged to a third party, and did not come into possession of the defendants until later. These beepers were installed with the consent of the then-owner, and were delivered to a buyer having no knowledge of the presence of the beeper. Because the government came into physical contact with the container before it belonged to the defendants, the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade the defendants' privacy. Jones poses a different scenario, since the government trespassed when it placed the GPS tracking device on Jones's vehicle, while he had a possessory interest in it.
This approach drew criticism from Justice Alito, who in his concurrence joined by Justice Ginsburg, Justice Breyer and Justice Kagan, accused the majority of applying 18th-century tort law that strained the language of the Fourth Amendment. Alito would have used the Katz test to determine that Jones's reasonable expectations of privacy were violated by the long-term GPS tracking of his vehicle. Society has a reasonable expectation that law enforcement agents and others would not, and could not, secretly monitor and catalogue every single movement of a person's vehicle for an extended period of time. In Jones's case, Alito found that four weeks of tracking every movement Jones's car made clearly represented an infringement upon the Fourth Amendment.
However, Alito did not elucidate a clear test to determine whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment infringement. Additionally, under the Katz approach, Alito notes that short-term GPS tracking, even with a physical trespass, would not invoke any Fourth Amendment concern, as it accords with expectations of privacy that society has recognized as reasonable. Alito based this conclusion on the holding in Knotts, where the Court stated that a person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.
By relying upon the law of trespass, Alito contends that the majority's approach 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. What would happen if, in the present case, the government had conducted the same type of surveillance, via electronic access to a factory, an owner-installed vehicle tracking device or a GPS enabled smartphone? Would the sending of a radio signal to activate the system constitute a physical trespass?
However, Scalia countered Alito's concurrence by stating that the common law trespass approach will not be the exclusive test when dealing with the propriety of Fourth Amendment searches. Situations involving merely the transmission of electronic signals, without trespass, would remain subject to a Katz analysis. Scalia went on to state that case law, specifically Knotts and Karo , would still allow long-term visual observation, conducted by a large team of agents, multiple vehicles and aerial assistance, since a person traveling in an automobile on public streets has no reasonable expectation of privacy in his movements from one place to another. Nevertheless, Scalia suggested that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy. Unfortunately, since this issue was not put into question by the facts in the present case, the majority declined to address it.
Although this may seem too narrow a decision considering the rapid evolution of GPS tracking technology, Alito's alternative approach stands to erode the longstanding protection of the expectation of privacy, which is particularly strong in instances where people possess or control property. In her concurrence, Justice Sotomayor puts into perspective the issues left unresolved by the majority's opinion, but also the inherent dangers in Alito's approach.
Sotomayor joins the majority's opinion because at a minimum, a Fourth Amendment search occurs when the Government obtains information by physically intruding on a constitutionally protected area. Sotomayor wisely warns that exclusive application of the Katz test would discount the constitutional relevance of the government's physical intrusion on Jones's vehicle.
However, Sotomayor also noted that the majority's trespassory test would provide little guidance in cases involving surveillance without a physical invasion on property. Using a Katz analysis, Sotomayor agreed with Alito that long-term GPS monitoring in investigations of most offenses impinges upon reasonable expectations of privacy. However, in cases involving short-term GPS tracking Sotomayor suggests a different approach when applying the reasonable expectations test. Short-term GPS monitoring generates a precise, comprehensive record of a person's public movements, which reflect a wealth of detail about their familial, political, religious and sexual associations. One trip to an AIDS clinic, psychiatrist, union meeting, mosque or strip club can convey information most people would consider private in nature. Most owners of GPS-equipped cars and smartphones would not contemplate that these devices would be used to enable covert short-term surveillance of their daily movements.
Additionally, Sotomayor goes a step further in suggesting that it would be necessary to reconsider the premise that individuals do not have a reasonable expectation of privacy in information voluntarily disclosed to third parties. In today's digital marketplace, people reveal a great deal of information about themselves to third parties, such as websites they visit, phone numbers they dial and even the products they purchase online. It is hard to believe that people would accept without complaint the warrantless disclosure to the government of every website they had visited, or the types of books and medications they purchased online. According to Sotomayor, unless Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy, these types of private electronic transmissions would not be entitled to Fourth Amendment protection.
Although the issue of GPS tracking without physical trespass remains unanswered by Jones, the adoption of the trespass test provides a clear victory for Fourth Amendment jurisprudence. It provides a minimum degree of specific protection involving any case in which the government physically invades personal property to gather information, without having to decipher whether an individual should have a reasonable expectation of privacy with respect to their personal property. Both Justice Alito's and Justice Sotomayor's concurrences show that the Court is ready to address GPS monitoring without physical trespass. However, the majority wisely reserves this issue for the (hopefully) near future. In the meantime, the Court has firmly re-established Fourth Amendment protections that fell to the wayside in the past half-century, after the advent of Katz .
Corrie Thearle currently works for the Pittsburgh City Legal Department, and after graduation she will be a clerk for the Court of Common Pleas of Somerset County.