In what some might say was an unexpected decision, the United States Supreme Court held last week that a GPS device attached to a vehicle and used to monitor the vehicle’s movements violated the Fourth Amendments prohibition of unreasonable searches. Many were expecting that the conservative majority would come down on the other side of the issue. The opinion does have two alarming hints that should be watched closely.
First, Justice Alito’s concurrence did introduce the novel thought that “whether a search has occurred depends on the nature of the crime being investigated.” U.S. v. Jones, 565 U.S. _____ (2012). Alito’s concurrence also over-emphasized the thought that the Fourth Amendment only protects against meaningful interference with possessory interests.” Id. at concurrence p. 2. He reasoned that the installation of the GPS device was so small that no violation had occurred. Fortunately, the majority did not adopt this reasoning although three other justices did.
Second, the Court would not entertain the government’s alternative argument that even if a search did occur, it was reasonable within the meaning of the Fourth Amendment. The Court refused to consider the argument as it was not raised in the lower courts – but the Court did not outright reject the proposition.
In Jones, the FBI used a variety of surveillance techniques while investigating alleged drug trafficking. In addition to visual surveillance, hidden cameras, pen register, and wiretaps, the Federal District Court authorized the installation within 10 days of a GPS tracking device on the suspect’s jeep. On the 11th day, the device was installed. It recorded and transmitted data for the next 28 days.
The fact that the warrant was issued was ignored for purposes of the opinion as the government stipulate that the officers did not comply with the terms of the warrant. Hence the issue before the Court was whether the warrantless use of the GPS device violated the Fourth Amendment. In a sense though, the opinion is not all that powerful as the trial court had authorized the warrant. Had the officers complied with the terms of the warrant, there would have been no meaningful Fourth Amendment challenge.
That said, the Court began its opinion with the presumption that the Fourth Amendment analysis is inherently tied to common law trespass. The presumption should not be ignored by criminal defense practitioners whom should understand that this foundation was expanded in Katz v. United States wherein the United States Supreme Court emphasized that the Fourth Amendment is designed to protect persons, not places. From there, the analysis was redefined to protect a person’s “reasonable expectation of privacy.” Hence, be warned that the return to reemphasize the common law trespass, could create slippery slope to deteriorate the Amendment’s protections – the opinion does reference that the reasonable expectation of privacy analysis added to, not substituted for the trespass premise.
The United States Supreme Court then reasoned that the Fourth Amendment was meant to address government trespass on particular areas. The Amendment itself uses the word “effect.” Ultimately, the jeep was just such an “effect” meant to be protected by the Fourth Amendment. The installation without a warrant violated the Amendment. That said, Juxtaposing the various concurring opinions and the different understanding of the Fourth Amendment protections should create discomfort.
