Supreme Court Hears Oral Arguments on GPS Tracking Case
By Amara Osisioma – Edited by Andrew Crocker
U.S. v. Jones, 10-1259 (2011)
Transcript of Oral Arguments
On Tuesday, November 8th, the Supreme Court heard oral arguments in U.S. v. Jones to determine whether the police had violated Antoine Jones’ Fourth Amendment rights when they attached a GPS to his car without a warrant and tracked his movements. Though the police initially obtained a warrant for the investigation, it had expired when they placed the GPS on Jones’ car. Under the standard first developed in Katz. v. United States, Fourth Amendment protection extends to an individual’s “reasonable expectation of privacy.”
In applying this standard, the Court must determine whether and how warrantless GPS tracking differs from police tailing an individual by sight in public, which is not subject to Fourth Amendment protection. U.S. Deputy Solicitor General Michael Dreeben, on behalf of the government, argued that regardless of the method used, police tracking of individuals in public places is constitutional. Yet, despite questioning from several justices suggesting that use of a GPS might constitute a search under the Fourth Amendment, Jones’ attorney, Stephen Leckar, instead tried to propose a narrow rule that the installation of the GPS was itself a search or seizure requiring a warrant.
Commentaries by the Center for Democracy & Technology and Professor Orin Kerr for The Volokh Conspiracy highlight the justices’ discomfort with the idea that evolving technology might render current constitutional protections insufficient, a scenario they repeatedly compared to George Orwell’s 1984. At the same time, SCOTUSblog notes that both parties’ inability at oral argument to suggest clear rules for guiding law enforcement’s use of surveillance technology frustrated the justices, leaving the outcome uncertain. The Wall Street Journal suggests that even a decision by the Court requiring a warrant in order to use a GPS tracking device may not change the limits of police surveillance because law enforcement authorities in most states can instead request access to a customer’s cell phone records for tracking purposes without a warrant and without the customer’s knowledge.