By Lisa Judge, Principal Assistant City Attorney, Tucson, Arizona
United States v. Jones, Part One
|Editor’s note: Part two of this column, “Implications for Other Technologies as Courts Apply Jones to GPS Cases,” will be published in the July 2012 issue of Police Chief magazine.|
he January 23, 2012, U.S. Supreme Court decision in United States v. Jones1 concerning the use of a global positioning system (GPS) tracking devices raises more questions than it answers for use of expanding technology by law enforcement. As technology moves ever forward and expectations of privacy seem to be dwindling, the Jones decision refocuses the understanding of what constitutes a search back to the legal trespass principles in use at the time the Fourth Amendment was adopted. This rearward-looking approach to defining what constitutes a search will require law enforcement agencies to recalibrate their understanding of what privacy a person can reasonably expect, when their use of technology rises to the level of a search, and how best to employ emerging technology consistent with this old take on new trends. As technology advances toward a point where any aspect of a person’s life can be monitored by the government without much effort, the court makes it clear that it will analyze privacy and Fourth Amendment intrusions applying 18th century notions of privacy.
In Jones, agents obtained a warrant that allowed them 10 days to install an electronic tracking device on Jones’s jeep, but they failed to install it until the 11th day. They attached the GPS device to the underside of the jeep while it was parked in a public parking lot in neighboring Maryland rather than in Washington, D.C., as authorized by the warrant. Agents tracked the vehicle over a 28-day period, changing the GPS battery once in another public Maryland lot. The device provided more than 2,000 pages of data about Jones’s movements, which could be tracked at any given time to within 50 feet to 100 feet. Jones and several codefendants were ultimately charged with conspiracy to distribute and possession with the intent to distribute 5 kilograms or more of cocaine and 50 grams or more of cocaine base. The data were used to connect Jones to a stash house that contained $850,000 in cash, as well as the cocaine and the cocaine base. Jones was found guilty and sentenced to life in prison.
At trial, the U.S. District Court for the District of Columbia suppressed any data obtained while the vehicle was parked at Jones’s residence but admitted the remainder, consistent with then-existing law that no search occurs unless there is an infringement on a reasonable expectation of privacy. That court stated what many believed: “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”2 On appeal, the D.C. Circuit Court reversed Jones’s conviction, holding that all GPS data evidence obtained without a warrant violated the Fourth Amendment.
The U.S. Supreme Court held that the “government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment.”3 The court reasoned that the Fourth Amendment protects people and their homes, their papers, and their effects from unreasonable search and seizure, and since a vehicle is indisputably an effect, it is explicitly protected by the Fourth Amendment. The court characterized the government’s act of placing the device on the jeep as “physically occupied[ing] private property for the purpose of obtaining information,” and as such it was a search. The court stressed that this type of intrusion by the government on an area protected by the U.S. Constitution would have been considered a search under the Fourth Amendment at the time the amendment was adopted, stating, “[w]hatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”4
This decision is a major deviation from U.S. Supreme Court Fourth Amendment doctrine that has evolved over the last 45 years. Beginning with Katz v. United States, which announced that “the Fourth Amendment protects people, not places,”5 the court has developed the legal theory that Fourth Amendment protections are tied to a person’s reasonable expectation of privacy in any given set of circumstances, rather than in set locations or objects. Under this well-established theory, Jones’s Fourth Amendment rights would not have been violated, since the jeep had been accessed on public property, driven on public roads, emitted data from a device attached to an area of the jeep that is constantly exposed to the public, and was subject to the vehicle exception to the warrant requirement. Given the public nature of that scenario, it would be difficult to find a reasonable expectation of privacy. However, the court seems to dispense with this line of reasoning and simply declare that, historically, the Fourth Amendment would be implicated by the government’s action based on Jones’s possessory right to the vehicle.
The majority analysis in Jones leaves many unanswered questions and muddies the water for law enforcement officers trying to gauge whether their actions are lawful. What does this analysis do to other areas that have been, up until now, fair game based on a reasonable expectation of privacy theory? If an officer has to stand on a front porch to see inside a window, is the act of standing on a person’s property an intrusion that constitutes a search and necessitates a warrant? If not, why is the underside of a vehicle on a public road more highly protected than a front porch? If so, who, if anyone else—including mail carriers and visitors—can stand on the same porch and see the same activity through the window? If anyone can see from this vantage point, why must a law enforcement officer seek a warrant for something that is readily observable to anyone else who walks onto the porch?
The court acknowledges that gathering electronic evidence where no physical trespass occurs will be analyzed with the standard reasonable expectation of privacy test. “Situations involving merely the transmission of electronic signals without trespass would remain subject to the Katz analysis.”6 This has implications for using technology from a phone company to track a signal or locate a cellphone, and it also brings into question whether a person’s cellphone account or billing information is an effect protected by the Fourth Amendment under this court’s analysis.
This shift back to a focus on a property-based privacy interest rather than what is reasonable under the circumstances provides a simple answer to a narrow question of physical intrusion on a person’s property or effects by government. However, it leaves open an enormous range of questions regarding technologies that can monitor places without actual intrusion or the physical presence of law enforcement officers. The concurring opinions by Justices Sotomayor and Alito acknowledge that the majority opinion provides “little guidance” in situations involving other methods of surveillance that do not require physical invasion of property, and Alito expresses concern that this analysis will lead to various and incongruous results.7
Justice Alito’s concurring opinion, which attracted three other justices, notes at the outset that many were initially confused and concerned: “By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels.”8 He suggests that the better approach, given the realities of technology and the evolving expectation of privacy is this: “The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.”9 Alito contends that the tracking of every movement Jones made for four weeks was clearly of a degree that constituted a search requiring a warrant.
Alito would rather the court focus on whether Jones’s reasonable expectation of privacy was violated by long-term monitoring of his vehicle’s movements. This test is not without problems, namely in deciding what a hypothetical reasonable person expects in terms of privacy. He notes that technology can change those expectations, as people accept the tradeoff of privacy for increased convenience or security afforded by technology. Closed-circuit television monitoring, traffic cameras, vehicle-tracking systems as standard equipment, and sophisticated cellphone GPS systems are listed as examples that shape the average person’s privacy expectations with regard to their movements.
Justice Sotomayor agrees with the majority trespass theory and with Alito that the length of surveillance will then become important in deciding whether such surveillance violates a reasonable expectation of privacy.10 However, she goes even further in protecting electronic information by expanding reasonable expectations of privacy to include information disclosed to others: “More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”11 She would consider extending a privacy interest in information provided to cellphone companies, Internet service providers, and others who collect such electronic information. “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection,” she said.12
The court did not address whether it would be reasonable to conduct this type of search without a warrant and explicitly declined to address the issue because the government failed to raise that argument in the lower courts. Although the court left open the issue of whether a warrant is required to use GPS monitoring, there are so many varied considerations—for example, ownership and possessory rights to the object being monitored, whether there is physical intrusion involved, and whether a person other than an owner or possessor still has a reasonable expectation of privacy—that the only reasonably safe answer is to always obtain a warrant prior to using GPS monitoring.
One clearly unanimous proposition emerges that the court believes they “must assur[e] preservation of that degree of privacy that existed when the Fourth Amendment was adopted.”13 This presents a conundrum for law enforcement agencies seeking to use technologies that could not have been dreamed of when the Fourth Amendment was adopted. ♦
1United States v. Jones, 132 S. Ct. 945 (2012).
2United States v. Knotts, 103 S. Ct. 1081 (1983).
3Jones, 132 S. Ct. at 946.
4Id. at 949–951.
5Katz v. United States, 88 S. Ct. 507, 511 (1967).
6Jones, 132 S. Ct. at 953 [emphasis in the original].
7Id. at 955, 957–964.
8Id. at 957.
9Id. at 964.
10Id. at 956; Justice Sotomayor also expresses great concern with GPS monitoring entirely: “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits and so on.” (Id.) She observes how relatively easy GPS monitoring can determine trips to such locations as the psychiatrist, an abortion clinic, a church, an AIDS treatment center, and the like.
11Id. at 957.
13Id. at 947, Syllabus, quoting Kyllo v. United States, 121 S. Ct. 2038, 2043 (2001).
Please cite as:
Lisa Judge, "The Supreme Court Goes Back to the Future in Deciding the Constitutionality of Using GPS Technology," Chief’s Counsel The Police Chief 79 (June 2012): 12–13.