Maximilian Lee, Boston University School of Law
The Fourth Amendment guarantees people the right to be free of unreasonable searches and seizures. A search must be of something in which a person has a reasonable expectation of privacy. See Katz v. United States, 389 U.S. 347 (1967) (J. Harlan concurring). A seizure occurs when the government meaningfully interferes with one’s possessory interest in their property. United States v. Jacobsen, 466 U.S. 109 (1984).
Before turning to the merits, it should be pointed out that the questions presented to the Court assume that the police conducted their actions without a warrant. The police had obtained a warrant, but it had expired the day before the police attached the GPS device to Petitioner’s vehicle. This case thus presents a third question: whether the expiration of a warrant the day prior to its execution renders the search or seizure unreasonable in violation of the Fourth Amendment.
The Supreme Court has never decided whether the warrant becomes invalid upon its expiration. The Supreme Court has collaterally touched upon this issue in two cases. In Sgro v. United States, 287 U.S. 206 (1932), the Court voided a search warrant because it had expired and the police had not executed the warrant within the statutory grace period of ten days. Ironically, in the 1958 case of Jones v. United States, 357 U.S. 493 (1958), the Court merely presumed that the warrant was invalid merely because it had expired without citing authority or discussing the point, and concluded that the warrantless search of a home, though the police had probable cause, was unconstitutional.
The Ninth and Tenth Circuits have held that the execution of an expired warrant is not a per se Fourth Amendment violation. See United States v. Garner, 398 Fed. Appx. 380 (10th Cir. 2010) (finding that evidence gathered pursuant to a warrant that had expired four days prior to the execution of the warrant should not be suppressed because the defendant did not demonstrate “that the execution of the expired warrant was prejudicial or that it was done intentionally and with deliberate disregard of the warrant's expiration date.”); United States v. Gerber, 994 F.2d 1556, 1560 (9th Cir. 1993) (“[C]ompleting a search shortly after the expiration of a search warrant does not rise to the level of a constitutional violation and cannot be the basis for suppressing evidence seized so long as probable cause continues to exist, and the government does not act in bad faith.”). The mere expiration of a warrant does not make a search pursuant to the expired warrant unreasonable because the probable cause that prompted the warrant likely still exists beyond the judicially determined expiration date. Reasonableness, rather than arbitrary dates, is the touchstone of the Fourth Amendment. See Brigham City v. Stuart, 547 U.S.
398, 403 (2006). The Court should resolve any tension between recent circuit court precedence and the assumption underlying this case. Assuming the government waited for the expiration of the warrant in bad faith, the government only needed a warrant if it conducted a search or seizure. A person cannot have a reasonable expectation of privacy in their public location. United States v. Knotts, 460 U.S. 276 (1983). The GPS device only revealed provided the public location of Petitioner’s car. While Jones may have subjectively expected privacy in his public movements, his presence on public roads exposed him to anybody willing to look at him. Police need not avert their eyes to people in public. Fear that technology has advanced the government’s capabilities beyond a level that society is willing to accept is unfounded. People gladly accept GPS tracking when its use benefits them, thus society is willing to accept its use generally. Furthermore, the GPS device provided limited information, specifically Petitioner’s public location on a satellite image map.
The D.C. Circuit below concluded the search was unreasonable because the police would not have been likely to actually tail Petitioner for a month. This standard would create significant line drawing problems in subsequent cases. Even if one month goes beyond a reasonable period of time that the police could tail Jones, this aggregate exposure standard or “mosaic theory” is unworkable. Under Knotts, people have no expectations of privacy in their public movements at all. Thus they have no expectations of privacy in the patterns of their movements. Public observations should not be unconstitutional merely because the prolonged search reveals a pattern not discernible from a single trip. It makes no difference if the police observed the subject in public for one hour or one year. Petitioner lacked any expectation of privacy in each of his public movements by vehicle; each part had zero expectations of privacy, thus the sum of the parts is also zero.
The government did more than determine Petitioner’s public location though. The police attached a GPS device to his vehicle. Although the GPS device did not disrupt operation or enjoyment of his car, the government undeniably intruded upon Petitioner’s property by attaching the GPS device to it. The government cannot rely on precedence for de minimis intrusion exception. See Silverman v. United States, 365 U.S. 505 (1961) (holding that unauthorized use of a spike mike that made contact with a residence’s heating duct constituted an meaningful intrusion into a constitutionally protected area). A person’s vehicle is a constitutionally protected area, though with lesser expectations of privacy than a residence. See California v. Carney, 471 U.S. 386, 390 (1985). Since the government attached their GPS device onto Mr. Jones’s vehicle, they meaningfully intruded upon one his constitutionally protected areas. If they had no authority to do so, then Mr. Jones’s Fourth Amendment rights were violated.
Exclusion of this evidence would have deterrent effect, see United States v. Leon, 468 U.S. 897, 907 (1984), this evidence should be excluded because the police obtained it through an unreasonable seizure of Petitioner’s vehicle.
Kelline Linton, Pepperdine School of Law
Jones: the Perfect Vehicle for a New Rule
When the Supreme Court heard arguments for United States v. Jones in early November, the justices encountered a factual scenario that begged them to reconsider established Fourth Amendment jurisprudence. In Jones, agents, with an expired warrant, installed a GPS device to Jones's vehicle and monitored its every movement for twenty-eight days. The indiscriminate monitoring collected GPS data both when the vehicle was parked in Jones's enclosed garage and when it was driving along public roads.
First, the warrantless installation of the GPS device created two Fourth Amendment concerns because it potentially was both an unconstitutional search and seizure.
As the Supreme Court established in Katz v. United States, an unreasonable search occurs when the search infringes on a person's subjective expectation of privacy that society is prepared to recognize as reasonable. If officers install a GPS device onto a vehicle that is located in a private area, their installation is an unreasonable search that violates the Fourth Amendment. For example, a typical garage attached to a suburban home is considered curtilage under the factor test of United States v. Dunn; therefore, when police enter a garage without a warrant to install a GPS device, they are performing an unconstitutional search.
If a vehicle is located in a house's driveway, the constitutional analysis changes. Circuit courts consider driveways "semi-private areas." While the Eighth Circuit in United States v. Wells stated that satisfaction of the Dunn curtilage criteria is "highly relevant" to determine whether Fourth Amendment rights attach to a driveway, ultimately the homeowner must support his expectation of privacy with special features-such as enclosures, gates, and "no trespassing" signs-that block access and visibility to the driveway. For example, in United States v. Pineda-Moreno, the Ninth Circuit held the GPS installation in a driveway was not a search regardless of whether a portion of the driveway was located within the curtilage because the defendant had taken no steps to prevent the public from accessing it. This "semi-private area" test is a fact-specific analysis as demonstrated in United States v. Ventiling, in which the Eighth Circuit stated that multiple "no trespassing" signs did not establish an expectation of privacy when the driveway was located in a rural area and had no locked or closed gate.
In Jones, agents installed the GPS device to the external undercarriage of Jones's Jeep while it was parked in a public parking lot. This installation was not an unreasonable search under the Fourth Amendment because the vehicle was in a public area, which makes the installation analogous to the facts found in United States v. Cuevas-Perez (7th Circuit) and United States v. Marquez (8th Circuit). Furthermore, as explained by the Supreme Court in New York v. Class, Jones had no reasonable expectation of privacy in his Jeep's exterior because it was "thrust into the public eye."
While the installation was not a search, it might have been a seizure. In Jones, the agents used a battery-operated GPS device. In United States v. Garcia, the Seventh Circuit held such a device did not seize a vehicle because it did not affect the car's driving qualities, draw power from the car's engine, or even alter the car's appearance. However, in Commonwealth v. Connolly, the Massachusetts Supreme Court held a GPS installation was a seizure because the police were using private property to obtain information for their own purposes. While the GPS device in that case ran on the vehicle's power, the court stated that regardless of the GPS's power source, the installation was still a seizure because it transformed the vehicle into the government's messenger-substantially infringing on the owner's possessory interest. In United States v. Karo, Justice Stevens (in his concurring and dissenting opinion), took a similar approach by maintaining that the attachment of an electronic monitoring device to a vehicle is substantial interference because "the character of the property is profoundly different when infected with an electronic bug than when it is entirely germ free." If the Supreme Court follows Justice Stevens' logic, it will find the installation was a seizure, regardless of its power supply, because it forced Jones's vehicle to act as a government informant without Jones's consent.
Second, the monitoring of the GPS device was an unreasonable search under the Fourth Amendment.
Under the seminal case of United States v. Knotts, the Supreme Court held electronic tracking was not a search if it collected information exposed to public view. In Knotts, police installed an electronic tracking device in a container of chemicals to monitor the movements of a vehicle on public roads. Officers followed the vehicle for part of its 100-mile journey, but then they ceased visual surveillance. They resumed surveillance an hour later after using the beeper to determine the vehicle's location. The Court noted the electronic monitoring was not a search because a person "traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."
However, the D.C. Circuit found Knotts inapplicable when considering the high-tech tracking found in Jones because the monitoring revealed the totality and pattern of Jones's movements not from "one place to another," but from "place to place to place." In Knotts, a 1983 case, the Court explained that if the evolution of technology ever allowed "dragnet type law enforcement practices," such as 24-hour surveillance of any American without judicial supervision, different constitutional principles may be applicable. Jones is the case that gives rise to these new Fourth Amendment considerations.
While agents could have physically followed Jones for twenty-eight days, they chose to use a GPS device that automatically recorded transmissions and calculated the vehicle's precise location every ten seconds. Further, the government did not stop the device from transmitting private data when the vehicle was located in private areas, such as Jones's enclosed garage. If the Court finds such monitoring constitutional, it will set precedent for warrantless mass surveillance in which police can electronically track any vehicle that travels on public thoroughfares. As Judge Posner warned in United States v. Garcia:
It would be premature to rule that such a program of mass surveillance could not possibly raise a question under the Fourth Amendment-that it could not be a search because it would merely be an efficient alternative to hiring another 10 million police officers to tail every vehicle on the nation's roads.
This "Big Brother" future is more plausible today than it was in Orson Welles's 1984, and it is our country's highest judiciary who must prevent the trampling of our Fourth Amendment rights by the dragnet type law enforcement practices indiscriminately employed against Jones.
Aaron Olson, Gonzaga University School of Law (Submitted Graph)
“Surely our state and federal Constitutions and the cases interpreting them foreclose a regression into an Orwellian society in which a citizen, in order to preserve a modicum of privacy, would be compelled to encase himself in a light-tight, air-proof box. The shadow of 1984 has fortunately not yet fallen upon us” (9 Cal. 3d 626, 637). California Supreme Court Judge Tobriner is discussing whether one would need to draw a shade to expect privacy, but also inadvertently forecasts the collision course between the excelling level of technology and the jurisprudence of the Fourth Amendment.
This unforeseen collision was initiated in Katz v. US (389 U.S. 347), when the Supreme Court abandoned trespass doctrine and a narrow view of tangible effects listed in Fourth Amendment, and instead framed the Amendment’s protections as a link between persons and those effects. A violation then did not center on whether a person infringed upon a chattel or homestead, but an expectation. Judge Harlan’s concurrence added objective reasonability the equation, and thus the trajectories of technology the Fourth Amendment were set to intersect in 1967.
US v. White (401 U.S. 745) condoned technological advancement as long as it displaced old, less efficient methods that also could be reasonably expected to be employed. The police could use a wire, because it accomplished the same task as an informant later writing from memory. Justice Douglass dissented that “to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known.” (401 US 745, 756).
The Court in Smith v. Maryland (442 U.S. 735) went a step further to permit technology’s advancement to move the line of what is deemed reasonable, as opposed to simply heeding to it. The majority reasoned that when the defendant dialed his phone, he should have reasonably expected those numbers to be public, as the phone company would know them. Thus, the accepted police use of a pen register did not merely displace a less-efficient method; it was incorporated into expectation by the progressing technology of the phone itself. Justice Marshal instead wondered what “risks [one] should be forced to assume in a free and open society.” (442 U.S. 735, 750). This statement is a clear endorsement of the notion that reasonability should limit technology, as opposed to technology changing the definition of reasonable.
Kyllo v. US (533 U.S. 27) slows the eventual collision by restricting new technology. The Court allows the use of technology that is already in general use, regardless of whether that use is reasonable itself. As for cutting edge technology, or new and potential changes to “reasonable” by technology, it is allowed only if it does not displace a physical intrusion, or in other words, if it is a more efficient form of an old technology. In essence, the Court says that while technology may define reasonable, that definition will not come from unexpected sources.
Living in Kyllo's shadow, the case at bar will be fought out much like US v. Pineda-Moreno (591 F.3d 1212). The Court will determine the defendant’s expectation of privacy at different times, locations, and situations. Is the satellite technology a fair replacement for police officers tailing the defendant, staking out his house, or the drug areas of interest? Is satellite technology culturally common in that the defendant may expect, either by phone, shape of car, or device placed on the car, to be followed? The Court will find a resolution within the current legal framework, still allowing technology to alter the definition of reasonable. This case will not likely be the collision that has been talked about.
However, societal functionality will slowly start to demand a different direction. It may not be now, but technology will become so invasive that the Supreme Court will alter its jurisprudential course. It will first define “reasonable,” and allow that definition to retroactively, or proactively, restrain the government’s use of technology.
The current jurisprudence allows technology to move the objective view, so that new technology expands the continuum of possible reasonability. Allow for demonstration a crude example. The technology of the 19th century, through binoculars or telescopes, allowed a person to see across a vast field. Obviously, 21st century technology makes judges comment about Orwellian existence, in that one can essentially peer into closed doors and see with the eyes of God.
The 19th century “reasonable expectation” would be a derivative of that technological realm -where one could peer over a field. While technology greatly expands, what may have been considered unreasonable before, now appears to be reasonable by comparison, to what has deemed Orwellian. Thus technology has changed the definition of reasonable.
Eventually, a threshold will be hit where the elasticity of reasonability will falter. It may not be GPS tracking placed on a cell phone or car, but there will be intrusions that society or the Court will not tolerate. The Court will likely then define reasonable, and let technology live within that definition.
John Stephens, University of Michigan Law School
What no one is mentioning, is that the Jones case presents a largely unprecedented issue for the court--an issue that will have enormous repercussions for 4th amendment rights.
The applicable legal question is whether the police conducted an illegal search by placing a GPS tracker on Jones' wife's vehicle, one day after an authorizing warrant expired. Whether this was an illegal search, turn on whether the GPS placement and extended tracking violates a right protected by the 4th amendment.
Whether a right was violated, depends on the uncertain "reasonable expectations" test used for 50 years by this court. While an empirical study could presumably answer the question of whether the public has an expectation of privacy violated by such extended tracking, a group of lawyers, far removed from "the public," decides this issue with a relatively "gut" call.
Before going further, one important fact should be noted: the police in the Jones case in fact obtained a warrant for the GPS tracking. The warrant was for 10 days, and the police used installed the tracker on the 11th day. It is hard to argue that the police "needed" this exception to conduct their investigation. We know that they could have done this with a warrant: and is there any argument that judicial review of any questionable law enforcement action is a bad thing?
Second, I would like to note that commentators who compare the Jones case to Knotts are often leaving out key distinguishing facts. In that case, law enforcement put a beeper in a can, that the defendant then place into his vehicle. The police were not the ones to intrude upon the individual's vehicle. More importantly, this beeper was merely an aid to follow the vehicle physically, it was not a GPS device that mapped out every move the defendant (or in our case the defendant's wife) made over week-long periods. This difference between short observation, which clearly are outside the realm of a reasonable expectation of privacy, and prolonged tracking is at the very heart of the Jones tension. There is a different between a prolonged tracking through GPS and physical tracking in person.
As my tone probably belies, my "gut" instinct says that people have an expectation that their movements are not being tracked in gross. I think people expect that if they hit the dunken donuts 6 times in an evening, this information will be kept private from the world at large--assuming that the individual uses different locations so that the cashier's don't get wind. After all, who would want anyone to know that they are visiting DD with such frequency?
Micah Andrews, University of Michigan Law School
I would like to focus first on what is at stake in this case. This case is not just about what technically meets the term of art: violation of an expectation of privacy. This case is about the scope of government power over our individual rights.
GPS technology poses a particularly dangerous problem for public privacy. A judge in Cuevas-Perez stated GPS is “a technology surely capable of abuses fit for a dystopian novel.” This is an important policy to keep in mind: GPS marks the gateway to a path of unprecedented access to an individual’s personal information in both the public and private spheres. The problem is not that law enforcement will wrongfully deter criminal activity. It is easy to agree that such uses are beneficial for us all. The problem is that, practically, the use of GPS technology gets at vast amounts of innocent information. Law enforcement will increasingly use GPS and analogous technology to cut down on the costs of investigation, and therefore broaden the extent of information gathered by law enforcement relative to time and money spent. Moreover, the use of widespread GPS technology opens up the door to even more intrusive investigation techniques. What about other individuals who use a vehicle that is being tracked? Is their privacy the price society is willing to pay to catch criminals? The poisoned fruit doctrine is indicative of the law’s refusal to leave all of our rights exposed, clearly that line should also be drawn at GPS tracking. Perhaps the practical constraints of GPS-less investigative techniques is exactly what we want as a nation.
Aside from these policy arguments, it is clear that the legal standard requires Jones to be vindicated. There is surely subjective and societal expectations of privacy here. There is no constructive revelation of this information by normal surveillance. Tracking over extended periods of time reveals something unique that no one subjectively believes is exposed. There is no way to justify the conclusion that anyone does not have this expectation to be free from prolonged tracking of every step of their lives. As notes in previous cases, this prolonged tracking reveals how often we go to church, visit bars, receive medical treatment, seek psychological help: this information constitutes protected information on a dozen different levels. No one short of perhaps a spouse or partner has access to this information.
The unavoidable ramification of this analysis, is that if we allow the government to have access to this quintessentially private information, what is next. The information revealed by prolonged tracking is more private than perhaps any other repository in existence. We do not allow law enforcement to seize our computer or planner without a warrant. In fact, if that were allowed no doubt there would be a resounding cry from all levels of the legal world. Yet we are considering licensing the government to do just that in this case.
Natalie Hoffman, University of Michigan School of Law
Unlike many of the other submissions, I believe that when law enforcement placed that GPS tracking device on the defendant's property, the defendant's 4th amendment rights were being violated. The venerable amici from the Cato Institute posits an undeniable truth: the reasonable expectation text is grossly inferior to the clearer test of actual physical privacy rights. That the reasonable expectations test has been applied in an uncertain, veritably arbitrary manner is evinced by the very existence of the Jones case: the standard is not workable. Using some ephemeral conception of an unknowable society is one of the most tenuous concepts ever applied by the courts.
I have to agree that Justice Harlan's reasonable expectations test is simply not the appropriate rule of law. The better rule is that the GPS seizure in the case at bar is akin to a property taking: by commandeering Jones' vehicle into a surveillance device, the government in fact prevented the defendant from exercising his exclusory rights over his personal vehicle.
Most important though, regardless of whether the court will depart from this reasonable expectation standard, this extended tracking is a defacto violation of 4th amendment rights: because, simply, the government riffled through the defendant's personal, secret information without a warrant. There is surely hidden information lurking behind the mapping and tracking of an individual's movements over long temporal periods. While nothing may be revealed by following someone to a baskin robbins once, in fact, a friend or acquaintance may be expected to see that individual in the normal course of events. But realizing that this same individual visits the baskin robbins 6 times a day, 7 days a week is another thing entirely. Now, the person is an ice cream addict. Now, the person's most intimate details are laid bare for law enforcement to dissect, without any procedural protection to ensure that there is probable cause for such a violation. Because, after all, we are talking about whether police should have to convince someone that there is actually a reason to track an individual.
Having established that there is a real, hidden informative manifestation lurking behind an individual's prolonged movements, it becomes clear that law enforcement cannot get at this information without a warrant. Like Katz walking into the phone booth, the defendant has taken all the precaution practical to protect the information contained in his prolonged movements. There is simply nothing else the defendant can do to protect this hidden information. If the Supreme Court decides that such searches can indeed be conducted without a warrant, than all individuals will be forced to constantly wonder what their movements say to the outside world: for how long before non-law enforcement personnel can track our movements as well?
Jill Narowt, University of Michigan Law School
The government is attempting to remove one more of our most fundamental zones of privacy from the constitution's protection. Although the practical challenges facing police officers are significant, this does not excuse a carte blanche exception allowing law enforcement to eviscerate our 4th amendment rights. Practicalities are never an excuse to destroy such important and essential parts of our constitutional system.
This case is not about information, it is about protecting the line between what is private, and thus requires the compelling evidence needed for a court-order to violate, and what is freely available. Installing and using a GPS device for extended periods constitutes a 4th amendment search because it violated the respondents reasonable expectation of privacy. Under Katz v. U.S., a search exists whenever the government intrudes upon society's expectations of privacy. Such an expectation must be reasonable, which simply means that it is consistent "with widely shared social expectations." Georgia v. Randolph. This Court cannot plausibly reason that the respondent should have known of a social expectation that people can install GPS tracking devices, and then track all of his movements for extended periods: because no such social expectation exists. The government cannot claim that the "everyday expectations of privacy we all share" include that someone may, at any time without our knowledge or a warrant, track our movements as we travel to see family, friends, and any other locales where individuals may have an increased desire for privacy, such as the doctor. Perhaps most telling, is that a lawful individual would not be able to track the respondent. It is difficult to imagine that anyone does not expect to be kept private, information that can only be gathered through illegal means. Finally, law enforcement has never used any analogous activity that might reasonably vitiate the respondents expectations in terms of law enforcement actions. That law enforcement, or the public, may conceivably be able to physically follow the respondent, does not reduce the violation inherent in this GPS tracking. In SIlverman v. U.S., the court made clear that an intrusive microphone was an impermissible search, even though the court acknowledged that law enforcement might have been able to use sensitive microphones, externally, to capture the same information.
I would like to emphasize that the court is presented with the question of whether warrantless trackings are constitutional. If law enforcement would heed the constitution's mandates of utilizing proper procedure in its searches, the Court would not be presented with this issue.
I also have concerns that approval of this GPS tracking practice will dangerously broaden law enforcement's powers. Allowing the government to place GPS devices in the first place is a slip backwards in 4th amendment jurisprudence. The Courts now countenance the police attaching a physical object to a citizens vehicle, when they lack sufficient cause to obtain a warrant. This seems but a step along the path of a complete eradication of privacy and property rights. Although the police may or may not be harming an individual's vehicle by attaching the device (and I am not convinced it will not harm is property) there is still a certain violation of personal property without probable cause.
Expeditious, or Fishing Expedition?
By Diane K. Seay, UDC Law
It is perhaps widely known that GPS is used to locate coordinates for navigating deep sea fishing. The purpose is to capture fish. Yet who should be privy to the coordinates of an American citizen’s life, without a valid warrant or permission? We are not to be tracked like prey.
It is fishing season: the metaphorical issues the Supreme Court faces are whether and to what extent fishing with a GPS on a person’s vehicle, without authorization or permission, is violative of the 4th Amendment.
The District of Columbia Court of Appeals wisely explicates the intuitively obvious: neither extended GPS tracking nor tracking without a valid warrant passes the smell test. Jones’ search was unreasonable. And it is vital that we sustain our reasonable expectation of privacy as long as we possibly can. This exercise of freedom - the vote of each Supreme Court Justice against warrantless GPS tracking - ensures the freedom of all Americans.
Whereas Alexander Hamilton argued against a proposed Bill of Rights to the Constitution as unnecessary, dangerous, and federally unregulable, I am thankful for the additions in force today. (Federalist Papers, No. 84, para. 9, http://www.foundingfathers.info/federalistpapers/fed84.htm).
Is it Too Hard to ask the Police to Obtain a Warrant?
By Rami Hernandez, Boyd School of Law, UNLV
The questions raised in search and seizure cases are not the same now as they were when the 4th Amendment was first adopted. At that time, the government had limited means of monitoring the activities of an individual. The police had to rely primarily on the personal inspection of a citizen’s home or property to determine if a law was being broken. The technological revolutions that have occurred since the 18th century have greatly expanded the reach of legal authorities into the home of the individual. Today, the police have cameras, parabolic microphones, wiretaps, and GPS tracking devices at their disposal to search wrongdoers.
These new technologies raise questions that the drafters of the 4th Amendment never considered. Law enforcement cannot be relied upon to define how these technologies interact with 4th Amendment protections. First as authorities, they have a vested interest in capturing and convicting as many lawbreakers as possible. Invariably, this requires that the systems they use maximize efficiency and resources to cast as broad as net as possible over the jurisdictions they patrol. Second, important constitutional determinations are not supposed to be made by law enforcement officials based on practical preferences, but rather by the only entity that can definitely interpret the constitution: the Courts.
United States v. Jones presents this Court with an opportunity to define the reaches of police searches in a satellite age. Satellite technology is in many ways a law enforcer’s dream. Now, a policeman or agent of the law can track the movements of any potential suspect, conspirator, informer, or accomplice from the comfort of a police station or vehicle. This type of monitoring poses no physical risk of harm to the law enforcement agent: he or she cannot be detected and is thus safe from any repercussions that could occur from a personal surveillance. Moreover, the accuracy of such data cannot be questioned. A law enforcement agent’s recollection is not as reliable and often subject to impeachment. A GPS report, on the other hand, offers unimpeachable proof of a person’s whereabouts and actions. Lastly, with GPS technology the agents work anonymously. Unlike a regular search, there is no evidence that a search ever occurred unless the agent chooses to disclose the search to the citizens. Only if there is wrongdoing will the suspect be informed of the search. This raises issues of accountability and arbitrary enforcement.
The use of this technology, and its interaction with the 4th Amendment, is not something this Court should automatically defer to the authorities. Its decision will have far-reaching impacts for many years to come. GPS technology is no longer a far-flung science fiction concept. It is a reality that expands the eyes and reach of the government into everyone’s personal lives. The very thought of how far the use of this technology may go evokes images of a dystopian Orwellian society where “Big Brother is watching you.”
This Court should, therefore, use this occasion to clearly define the standards of the use of GPS and other intrusive technologies so as to protect the “reasonable expectation of privacy” that all citizens have. It should affirm the decision of the D.C. Circuit Court and remand the case back to the trial court because the potential for abuse of opening up warrantless surveillance through GPS devices outweighs any gains from public safety. Further, the cure for this problem is very simple: it would not trouble the authorities to obtain a warrant for a vehicle for a prolonged search or to attach a GPS device to a citizen’s vehicle for such purpose, as all that would be required would be a phone call to the judge to obtain such a warrant.
Legal Question and Applicable Law
The question before this Court is two-fold. They are 1) whether the warrantless use of a tracking device on Jones’ vehicle to monitor its movements on public streets violated the Fourth Amendment and 2) whether the government violated Jones’ Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
The Supreme Court has held that the threshold test to determine whether a Fourth Amendment violation has occurred is whether or not the person has “a reasonable expectation of privacy.” In determining whether a person has a reasonable expectation of privacy, the Supreme Court has established a two-part test: “First that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’" See Katz v. United States, 389 U.S. 347 (1967) (Harlan, J. concurring)
Facts and Procedural History
Antoine Jones, along with a co-conspirator was convicted of conspiracy to distribute and to possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base. U.S. v. Maynard, 615 F.3d 544, 548 (2010). Prior to his arrest, the police attached a GPS to Jones’ Jeep and tracked his movements 24 hours a day for four weeks. Id. at 555. The police did this without obtaining a warrant. Id. On appeal, Jones argued that the “use of the GPS device violated his ‘reasonable expectation of privacy’” under Katz and was “therefore a search subject to the reasonableness requirement of the Fourth Amendment.” Id. The government for its part conceded that the Katz test applies; however, it cited Knotts v. United States, 460 U.S. 276 (1983), which allowed the use of a beeper device to aid in tracking a suspect’s movement of chemicals, 615 F.3d at 555, as justification for its actions.
The Circuit Court disagreed and distinguished Knotts from the present case. Id. at 555. It stated that Knotts did not apply because the information obtained in Knotts was very limited in its usage and did not continue after the chemicals were delivered. Id. at 556. Knotts’ basic holding was that police could monitor a vehicle through “public thoroughfares” because there was no reasonable expectation of privacy from one place to another. Id. Although other circuits had authorized the use of GPS devices, no circuit had authorized use of prolonged surveillance of the type found in the present case. Id. Finally, the Court ruled that because of the continuous nature of the search, Jones did not expose himself, either in actuality or constructively, to a search. Id. at 560, 561-62. He, therefore, had a reasonable expectation of privacy not to have the government intrude on him in this way as “prolonged GPS monitoring defeats an expectation of privacy that our society recognizes as reasonable.” Id. at 564. The government appealed the decision and the case is set to go before the Supreme Court this term as U.S. v. Jones. 131 S.Ct. 3064.
Two issues are before this Court, and I support an affirmation of the lower court’s ruling on each one:
Issue # 1: Monitoring via GPS without a warrant
Prolonged monitoring via GPS without a warrant is obtrusive and a clear violation of one’s privacy. The very essence of the 4th Amendment is to protect against these types of intrusions. Even an originalist or historical interpretation would have to admit that the original drafters wanted to limit government’s role in the lives of the individual the fullest extent possible. Looking at the facts in the Jones case, we see that the government has crossed this line here for two reasons.
First, the police monitored Jones for four straight weeks. This is not a simple investigation of one’s movements. This is a pervasive intrusion into an individual’s life. Other cases involving the affirmation of GPS devices have been far more limited in scope and application. In none of the cases cited by the lower court was the investigation prolonged or continuous. For that very reason, those courts did not address the issue of prolonged surveillance because that question was not justiciable: GPS surveillance was used only to prove a specific act had occurred within a limited timeframe.
In Jones, the tracking was used to build a case against the Defendant, not to prove the occurrence of a specific offense. The lower court states that the police observed the “pattern of [Jones’] movements from place to place.” Id. at 558. Conceivably, the police were able to monitor where Jones slept at night, what restaurants he frequented, where he shopped, and where he worked, places where he had, as the Katz test explains, “a reasonable expectation of privacy.” Allowing such monitoring without a warrant in general could potentially lead the police to track any citizen’s movements wherever they choose to go, as they with Antoine Jones. This approach goes against the concept of limited government intrusion intended by the Fourth Amendment. It is also not a method of surveillance society has deemed “reasonable” as defined by Katz. Today, citizens, as they always have since our country’s founding, expect the police and government to stay out of their personal lives and business. They do not expect to be monitored around the clock in every aspect of their lives, and Mr. Jones certainly held that belief.
Second, the government had ample opportunity to cure the problem in this case by obtaining a warrant. At any time during the four week surveillance of Jones, the government could have obtained the necessary warrant it need to track Jones’s movements. Instead, it relied on inapplicable case law to justify its decision to continue without a warrant. See generally Knotts v. United States. Obtaining a warrant is quite simple for the police. Often all the police need to do is call a judge and the warrant is almost always quickly obtained if the police office can show a sufficient reason for the judge to issue the warrant. Here, the police appear to have collected ample evidence against Jones in order to obtain such a warrant. Thus, a warrantless search was completely unnecessary in this case. To make matters worse, the failure to get a warrant may, at this juncture, even allow a potentially guilty and dangerous criminal to go free.
Law enforcement will argue that it did not have time to obtain a warrant in Jones’ case. The judicial process may have slowed the police down, but the process exists for a reason: to ensure that arbitrary or malicious searches are not performed. Judicial oversight acts as a safeguard against the government’s intrusion and thus protects the privacy of the individual. The alternative is a police state where the government can monitor anyone’s movements at whim.
Further, the resultant loss of liberty is not outweighed by the loss of public safety. A mechanism, called a search warrant, exists to ensure that the police protect the citizenry while ensuring that their rights are protected. In a case like Knotts, the need for a search warrant was not necessary because the search was limited to a particular time frame and incident. Here, the search was far more extensive and required judicial intervention.
This Court should therefore use this opportunity to limit the ruling of Knotts to localized and particular searches. It should outright prohibit a 24-hour continuous search without a warrant as it “unreasonable” because the person involved has an expectation of privacy. A 24-hour search is not limited just to the highways and byways of our land. It extends to all parts of that person’s life, including those not related to the crime and is therefore not one society deems reasonable. Allowing a continuous search for 24-hours without a warrant opens the door to unfettered government intrusion in to almost all aspects of the citizenry’s private lives. This goes against the essence of the 4th Amendment and should be explicitly rejected by this Court.
Issue #2: Installing a GPS tracking device without a warrant
Equally troubling is installing a GPS tracking device without a warrant. Once again, what are the limits of government intrusion? When the 4th Amendment was ratified, the Government’s ability to enter one’s home was very limited to searching one’s home. Much later, when the technology became available, the courts allowed the police or law enforcement agent to search one’s car with probable cause. As a moving vehicle, it makes sense, the courts said, for the police to physically search one’s car without a warrant, especially as they are in public places. A car is also often in a public place, but not always, and the question of how to deal with automobiles in private places is one this Court should address.
The analysis from Issue #1 is helpful here. In deciding whether to seek a warrant for installing a GPS device, the law enforcement agent or police should consider the length and scope of the search. They should ask themselves: will the search be for a specific instance and will it be for a short period or continuous monitoring? If the answer is that the search will be for a long period of time and the monitoring continuous, then there is little, if any, reason for the police to proceed without a warrant. One can understand the need to go without a warrant if the crime is in progress, or about to be in progress, and the police have been tipped off to it. In those instances, the pressing needs of time make obtaining a warrant impractical. In Jones’ case, and other long-term ones, however, the monitoring is continuous and for a great length of time. Getting a warrant would, at worst, minimally impede the search, as the time needed to obtain the warrant would be a fraction of the total investigatory time. Therefore, the time concerns often associated with some warrantless searches do not apply in cases like Jones’, and these concerns are certainly outweighed by the deleterious effects these searches would have on someone’s private life.
The police will argue that a GPS does not invade someone’s life: it merely gives locations. The places a person frequents, however, reveal a great deal about who and what they are. These include places the government has no business knowing about or that the person wants to keep private from others. By monitoring someone’s life through a GPS device, the government can see the places a person visits. These include places protected by privacy laws, like doctor offices and hospitals. For some it may include potentially embarrassing places, such as strip clubs or adult bookstores. Attaching a GPS device is not merely a location detector: it gives a great deal of information about who one is and how they go about their business. Such searches into one’s life can hardly be defined as “reasonable” by anyone’s standards, especially as many of the places one frequents are of the kind where one has an expectation of privacy.
As with Issue #1, the cure is simple: the obtaining of a search warrant. Such an action, as indicated above, is relatively simple and allows for oversight. Cases like Jones’ are what the 4th Amendment was written to protect: the private life of the individual. The use of a warrant ensures that occurs, and as with issue #1, the loss of public safety is not outweighed or counterbalanced by the loss of one’s liberty.
The Court has a great opportunity to clearly define the limits of a police search in both the use and installation of GPS devices as monitoring tools for suspects. 24-surveillances and searches using GPS tracking are potentially pervasive into the private life of the citizen. Such a large-scale search demands the issuance of a warrant under the 4th Amendment. Obtaining such a warrant is a fairly straightforward process for law enforcement. A world without the procedural safeguard of a judicial warrant is both chilling and ultimately unneeded to protect public safety. Moreover, these searches are not one that society deems “reasonable.” For these reasons, the lower court’s ruling vacating Jones’s conviction should be affirmed.
Sakinda Skinner, David A. Clarke School of Law, University of the District of Columbia
The Supreme Court will hear U.S. v. Jones, a case that raises a question of whether the warrantless use of a tracking device on Jones’ vehicle to monitor its movement on public streets violates the Fourth Amendment. In anticipation of the Supreme Court’s holding, I project that the warrantless use of the tracking device on Jones’ vehicle to monitor its movement on public streets does violate the Fourth Amendment.
The Fourth Amendment reads, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” U.S. Const. amend. IV.
In the 18th century, state officers, used general warrants to conduct raids in search of materials relating to John Wilkes' publications (which attacked both government policies and the King himself). One of these raids involved John Entick, whose home was forcibly entered into and searched. As a result, Entick sued the King’s messenger, and the court ruled that the search and seizure was unlawful as the warrant authorized the seizure of all of Entick's papers, not just the criminal ones and the warrant lacked probable cause to even justify the search. Entick, therefore, established the English precedent that the executive is limited in intruding on private property by common law. Entick v. Carrington, 19 Howell’s State Trials 1029 (1765).
In the case at hand, police installed and used the information from a Global Positioning System (GPS) tracking device on Jones’ Jeep for four weeks, without a valid warrant. For the following reasons, I conclude that there was a Fourth Amendment violation.
First, the 4th Amendment applies to this case. In U.S. v. Jacobsen, the Court construed that the 4th Amendment protects unreasonable searches and seizures when there is governmental action. U.S. v. Jacobsen, 466 U.S. at 123 (1984). Here, there was government action when the police installed the GPS tracking system on Jones’ car, and received data from the GPS device.
Second, there was a search under the Fourth Amendment. In Katz v. U.S., the Supreme Court ruled that a search occurs only when a person expects privacy in the thing searched, and society believes that expectation is reasonable. Katz v. U.S., 389 U.S. 347 (1967). The test is: not what another person can physically or may lawfully do, but what one expects another will do. Thus the Court held that a search had occurred when the government wiretapped a telephone booth because the defendant expected that his phone booth conversation would not be broadcast to the wider world, and society believed that expectation was reasonable.
Subjective Expectation of Privacy: Here, although Jones may not have had a reasonable expectation of privacy while driving his Jeep on public streets, he did have a reasonable expectation of privacy that the police would not physically impair his Jeep in order to monitor him for a month, and reveal his whereabouts to the world. Katz holds that “[w]hat ones seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” Katz v. U.S., 389 U.S. 347 (1967).
Objective Expectation of Privacy: Additionally, society would find Jones’ expectation of privacy to be reasonable. Under a “societal understandings” theory, individuals who have cars with GPS systems, have a diminished expectation of privacy. However, individuals like Jones (who do not have GPS systems in their car) do not expect anyone to monitor and retain a record of their whereabouts for a prolonged time; rather, they expect each of those movements to remain “disconnected and anonymous.” Moreover, society will recognize Jones’ expectation of privacy reasonable because the warrantless use of the GPS device to track his movements for a prolonged time defeated that reasonable expectation. In other words, the prolonged GPS surveillance in this case far exceeds the intrusions occasioned by every police practice the Supreme Court has deemed a search. For example, the Supreme Court has found a search in the following instances: where a urine test revealed a host of private medical facts about an employee, including whether he or she is epileptic, pregnant, or diabetic, Skinner v. Ry. Labor Executives' Ass'n, 489 U.S. 602, (1989); the use of an electronic listening device to tap a pay phone was a search because a user of telephone booth assumes that the words he utters into the mouthpiece will not be broadcast to the world, Katz v. U.S., 389 U.S. 347 (1967); the inspection of a traveler's luggage was a search because travelers are particularly concerned about their carry-on luggage, Bond v. U.S., 529 U.S. 334, (2000); and the use of a thermal imaging device to discover the temperature inside a home was a search because in the home, all details are intimate details, Kyllo v. U.S., 533 U.S. 27 (2001). Additionally, State laws indicate that prolonged GPS monitoring defeats an expectation of privacy that our society recognizes as reasonable.
Moreover, U.S. v. Knotts does not govern this case. Knotts held only that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” not that such a person has no reasonable expectation of privacy in his movements whatsoever...” U.S. v. Knotts, 460 U.S. 276 (1983). Furthermore, Knotts involved a single trip, here Jones was under police surveillance for 24 hours for 4 weeks.
For these reasons, I project that the Supreme Court may find that the warrantless use of a tracking device on Jones’ vehicle to monitor its movement on public streets violates the Fourth Amendment. To grant government agents the power to use GPS tracking devices on people’s cars for prolonged periods of time, without a Warrant, is a grave departure from the current societal understandings of “reasonable expectation of privacy,” and will greatly diminish one’s expectation of privacy. People reasonably expect to be observed/monitored/followed by policeman in marked/unmarked police cars. However, public or private, wealthy or poor, people do not expect to be observed/monitored/followed by a GPS device that was physically impaired on one’s car, without a warrant.
Sam Harkinson, David A. Clarke School of Law, University of the District of Columbia
“The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause…” There is no doubt that when the First Congress voted to amend the Constitution with the Bill of Rights that they had a specific intent in mind. There is equally no doubt that in trying to determined what that intent was has created endless litigation as our country has grown over time. What remains to be seen is how this Court will treat what some have called a right to privacy as they drive down a public road.
“Virtually every governmental action interferes with personal privacy to some degree. The question in each case is whether that interference violates a command of the United States Constitution.” Katz v. United States, 389 U.S. 347, 351 (1967). In his famous concurring opinion in Katz Justice Harlan laid down the foundation to what would become a highly litigated area of law. Prong one, that a person has exhibited an actual subjective expectation of privacy. Prong two, that the expectation of privacy is one that society is prepared to recognize as reasonable. Katz, 361. Later in Knotts the Court expressly held that a person has “no reasonable expectation of privacy” when they are traveling on public roads from Point A to Point B. United States v. Knotts, 460 U.S. 276, 281 (1983).
What then is the question here? The means chosen are more sophisticated, but that alone should not alter the expectation. Simply because technology has advanced to the point where a person can be followed in real-time, does that mean that an expectation of privacy that once did not exist, is now created? If it was the case that police were no longer able to follow someone’s every move, what then happens to investigations? Are we as a society willing to say “no, you can’t follow people, you might...” what? Catch a criminal in the act? Establish enough Probable Cause to arrest? The technology has changed, but the expectation has not.
Critics of GPS tracking creatively attempt to say how the technology is more sophisticated, and therefore the rule should be altered. In doing so, critics have relied on the Court’s decision in Kyllo v. United States, 533 U.S. 27 (2001). This reliance is misplaced. Kyllo and GPS cases have one thing in common: they both involve police investigative techniques. Where GPS tracking is replacing an earlier technology (beepers), the heat imaging in Kyllo was redefining boundaries. The Court, arguably correctly, held that it was a search in terms of the Fourth Amendment, and without a warrant, was unconstitutional. Where thermal imaging was creating a new tool, GPS is simply the newest version of an established constitutional tool.
Critics also claim that this investigative tool will be misused by the government to spy on its citizens. Any proponent for GPS tracking that tries to argue otherwise is foolish and ignorant. The government, just like the rest of society, is made up of people. If the government were not subject to corruption or abuse, the world would be a better place. Simply being open to misuse, however, does not necessitate finding something unconstitutional. If that were the case, criminals would never be caught. Our system, regrettably, is not a perfect one. It is susceptible to misuse, abuse, and sometimes, ultimately fails. But isn’t that why society and government have built in safeguards? If a person who is impermissibly followed by use of GPS finds out, isn’t it possible that a section 1983 lawsuit could be expanded to include him? If a criminal who has been followed impermissibly, but who nonetheless was arrested for a righteous charge can demonstrate that the GPS evidence is bad, couldn’t the exclusionary rule apply to ensure that he was protected?
While it could be tempting to simply create an expectation of privacy where there was none before, this Court should take pause before doing so. The limitations placed on the government by constitutional protections already serve a safeguard to protect citizens. The issue in this case, is whether there is a search and seizure in following a person down a public road that is all.
Joseph Regalia, University of Michigan Law School
'Whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent."
First, I think it is clear that this was in fact a "search." Unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one's movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more-sometimes a great deal more-than does the sum of its parts. This concept is supported by the lower circuit caselaw.
The reasoning in cases that have ruled against violation of the 4th amendment, like Knotts, are not persuasive. In these cases, either the court specifically noted and distinguished that the defendant was only tracked for one discrete trip as opposed to the extended monitoring on the scale the court is considering in Jones, or the court was deciding the issue of whether a "search" had occurred. These cases do not address the question of whether there is a reasonable expectation of privacy violating our 4th amendment rights when the government tracks are every movement over the span of days. There is an identity in the whole that is not discernible in part.
My concern is that whether the information that extended tracking exposes is private turns on whether there is exposure, and whether there is a reasonable expectation of privacy: both of which appear to work favorably for the defendant.
Exposure to the public depends not upon the theoretical possibility, but upon the actual likelihood of discovery. "[A] bus passenger clearly expects that his bag may be handled. He does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner." Similarly, information gathered from a thermal imaging device has been held to not be a case of exposure, because a reasonable person would not expect someone to readily have such technology. "It is another thing entirely for stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine."
A reasonable expectation of privacy seems to be clearly violated here. Prolonged gps monitoring reveals an intimate picture of the subject's life that he expects no one to have. I cannot accept the argument that anyone does not have an expectation that they are free from a perpetual stalker.
As there was clearly a search, and a search conducted without a warrant is "per se unreasonable under the Fourth Amendment-subject only to a few specifically established and well-delineated exceptions," I don't see how this can't be a violation of the Fourth Amendment.