From http://www.law.com by Joshua A. Engel, Law Technology News, January 23, 2012
The U. S. Supreme Court held that the Fourth Amendment prohibited law enforcement from using GPS devices to conduct surveillance on suspects without a warrant in the case, United States v. Jones.
The Jones case began in 2004. At that time, a federal and local law enforcement task force began investigating the defendant, a nightclub owner and operator, for alleged cocaine trafficking. As part of the investigation, the law enforcement officers attempted to locate co-conspirators’ drug stash locations by conducting traditional visual surveillance and installing a camera near the defendant’s nightclub.
The task force also covertly installed a GPS tracking device on a Jeep Grand Cherokee used by the defendant. Originally, the task force obtained a warrant to install the device, but installed the device one day after the expiration of the warrant. Using information obtained from the GPS device, the task force was able to locate the defendant, and obtain surveillance photographs and videos, at a suspected stash house in Maryland.
Later, based on intercepted phone calls, the task force determined that the defendant was going to receive a shipment of cocaine in October, 2005. The task force executed search warrants at various locations and recovered nearly $70,000 from the defendant’s Jeep, as well as a significant quantity of cocaine, thousands of dollars in cash, firearms, digital scales, and other drug paraphernalia. The defendant was charged respondent with conspiring to distribute cocaine and other charges. He was convicted and sentenced to life imprisonment.
In order to understand Jones, it is necessary to start with two significant Supreme Court precedents based on very old technology: Katz v. United States and United States v. Knotts.
In Katz, the Supreme Court held that the warrantless wiretapping of conversations in a phone booth violates the Fourth Amendment. In reaching this conclusion, the Court shifted from the old property-based analysis of the Fourth Amendment to a privacy-based analysis. The Court explained that the Fourth Amendment would be implicated, and a warrant would be required, when the government violates an individual’s reasonable expectation of privacy. Justice Harlan, concurring, famously explained that the relevant inquiry under the Fourth Amendment has two parts: first, whether the person has “an actual (subjective) expectation of privacy,” and second, whether the individual’s subjective expectation of privacy is “one that society is prepared to recognize as ‘reasonable.’”
Knotts concerned the surveillance of a defendant who was suspected of manufacturing methamphetamine. Law enforcement installed a tracking device inside a five-gallon drum of chemicals used in the manufacture of methamphetamine. When the defendant purchased the drum of chemicals, the officers were able to follow his car with the help of a monitor that received the signals sent from the beeper.
Relying in part upon the information obtained through the use of the beeper, officers obtained a search warrant for the defendant’s cabin and discovered a drug laboratory and chemicals necessary for the manufacture of methamphetamine. The Supreme Court held that the Fourth Amendment was not applicable to the use of a tracking device in this situation.
The Court reasoned that the defendant did not have a reasonable privacy interest in the movement of his vehicle on a public roadway. This is, the Court reasoned, because drivers voluntarily convey to any observer their location and direction of travel by traveling on public roads. In other words, people have no legitimate expectation of privacy in their location if they could lawfully be viewed by law enforcement, and the police are permitted to use technology, whether flashlights or tracking devices, to augment “the sensory faculties bestowed upon them at birth.”
Knotts explicitly left open a question addressed by Jones, whether the use of electronic tracking devices to conduct 24-hour surveillance without a warrant was permissible, suggesting that “different constitutional principles may be applicable” to “dragnet type law enforcement practices.” The Jones case came before the Supreme Court on a split in opinions by lower courts.
Many courts, relying on Knotts, had held that the warrantless use of GPS tracking devices was permissible because the GPS tracking devices merely recorded what law enforcement officers could observe through traditional visual surveillance.
However, other courts, including notably the U.S. Court of Appeals for the D.C. Circuit in Jones (under the name United States v. Maynard), had declined to apply Knotts to GPS tracking devices. Instead, these court limited Knotts to holding that a person had no reasonable expectation of privacy where police use a tracking device to augment visual surveillance over a discrete and limited period of time, and that people have a reasonable expectation of privacy in the totality of their movements over the course of a period of time.
THE SUPREME COURT DECISION
In its decision, the Court held that the attachment and use of a GPS device to a vehicle constitutes a search under the Fourth Amendment and, therefore, requires a warrant.
The opinion by Justice Antonin Scalia — joined by four other Justices — began by noting that the U.S. government had to occupy private property for the purpose of obtaining information. Scalia, thus, would apply traditional notions of trespass to determine whether a Fourth Amendment violation occurred. Scalia, thus, rejected the government’s argument that no search occurred under the Katz formulation because the defendant had no reasonable expectation of privacy in the underbody of the Jeep where the device was attached and in the locations of the Jeep on the public roads, which were visible to all.
In doing so, the Court held that traditional notions of trespass could continue to govern Fourth Amendment cases on focused on the act of installing the tracking device: “Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search undoubtedly occurred.” Scalia distinguished Knotts on the grounds that the “beeper had been placed in the container before it came into Knotts‘ possession, with the consent of the then-owner.”
The opinion by Scalia declined to address the question of whether conducting the type of long-term surveillance enabled by GPS devices — if it could be achieved without a trespass — violated the Fourth Amendment. The concurrence by Justice Samuel Alito — joined by three other Justices — considered the question. Alito suggested that the short-term use of GPS devices may not violate a reasonable expectation of privacy, but “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” Alito’s view was based on the view 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.”
Justice Sonia Sotomayor joined in the majority opinion, but appeared to be very sympathetic to the view that a violation of the Fourth Amendment could be found using the Katz approach.
The Jones decision could be one of the more significant decisions of recent years because of its recognition of the role of changing technology. If future courts rely on Scalia’s trespass-based approach, the implications of Jones could be limited. However, there appears to be at least five votes in support of the view that the Fourth Amendment does not permit law enforcement to conduct surveillance beyond a targeted investigation into a certain crime without a warrant.
In this view, Jones may be considered the first of a series of cases where courts refuse to permit law enforcement to undertake surveillance of particular individuals over extended periods of time in the hope of piecing together evidence of illegal conduct, including evidence of illegal conduct that was not even suspected prior to the surveillance.
Joshua Engel is vice president and general counsel of the Lycurgus Group, based in Columbus, Ohio. He writes the Stockycat blog about technology and the Fourth Amendment.