Written by Heather Whitney
Edited by Kassity Liu
United States v. Jones (U.S. Jan. 23, 2012)
2012 WL 171117; No. 10-1259
In a hotly anticipated decision, the Supreme Court unanimously found that the Government’s warrantless attachment of a Global Positioning System (GPS) tracking device to a vehicle to monitor its movement constituted a Fourth Amendment violation. While unanimous in judgment, the Court split on both its underlying reasoning and with regards to whether the tracking amounted to a search at all. The Court also did not reach the question of whether the search was reasonable. Due to the Court’s fractured analysis, it remains unclear when the Government must obtain a warrant to track a vehicle’s movements, particularly in the case of short-term monitoring. In concurrence, Justice Alito also suggests that if the public views the losses of privacy brought on by new technologies as inevitable, his Katz analysis would be different in future cases.
Facts and Procedural History: In 2004, respondent Antonie Jones, owner and operator of a nightclub, was suspected of and investigated for trafficking in narcotics. Based on information the government gathered through their investigation, they applied for a warrant authorizing the use of a GPS device on a Jeep registered to Jones’s wife. The warrant was issued, authorizing the Government to install the GPS device on the Jeep in the District of Columbia within 10 days. Agents, however, did not abide by those requirements, installing the GPS device on the eleventh day and not in the District of Columbia but in Maryland. Nonetheless, for the next 28 days agents used the device to track the vehicle’s location, collecting over 2,000 pages of data. Eventually, Jones was charged with, among other things, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine. Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion in part, suppressing only the data obtained while the vehicle was parked in Jones’s garage; the remaining data was held admissible because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Jones’s 2006 trial produced a hung jury.
Then, in 2007, a grand jury returned another indictment against Jones. The Government used the same GPS data, which connected Jones to a stash house that contained $850,000 in cash, 97 kilos of cocaine, and 1 kilo of cocaine base. This time the jury found Jones guilty, and the court sentenced him to life imprisonment.
The United States Court of Appeals for the District of Columbia Circuit reversed the conviction, finding the installation of the GPS device and collection of GPS data without a valid warrant to violate the Fourth Amendment. A rehearing en banc was denied and the Supreme Court granted certiorari.
Opinion of the Court: Writing for the Court, Justice Scalia, joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, focused on the fact that the Government physically trespassed on private property for the purpose of obtaining information. Because the physical trespass was on property expressly protected by the Fourth Amendment, Justice Scalia found the reasonable-expectation-of-privacy test from Katz v. United States, 389 U. S. 347, 351 (1967) inapposite. Instead, Justice Scalia revitalized and then used a common-law trespassory test. Under this trespassory test, it was irrelevant whether Jones had a reasonable expectation of privacy in data about where his car had traveled – it was enough that the Government’s trespass on Jones’s “effect” would have constituted a “search” within the original meaning of the Fourth Amendment.
Justice Sotomayor Concurrence: While Justice Sotomayor joined the majority opinion, her separate concurrence makes clear that while she found the reasonable-expectation-of-privacy test unnecessary in this case, had a Katz test been necessary, she would have found a reasonable expectation of privacy violated. The majority of her concurrence was then dedicated to articulating her Katz analysis.
But, before moving on to her Katz analysis, it is interesting to note that Justice Sotomayor’s articulation of the majority’s holding deviated slightly, though potentially significantly, from the majority’s own articulation. The majority found that a trespass becomes a search when the trespass is done for the purpose of or with an attempt to find something or obtain information. Justice Sotomayor, however, stated that she “agree[s] that a search within the meaning of the Fourth Amendment occurs, at a minimum, ‘[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.’” By making no reference to the purpose or aim of the trespass, Justice Sotomayor’s articulation suggests somewhat broader Fourth Amendment protection.
Justice Sotomayor’s Katz analysis further showed her broad reading of the Fourth Amendment by making clear that, unlike Justice Alito, she would likely find even short-term GPS monitoring, regardless of physical trespass, a violation of a reasonable expectation of privacy. Justice Sotomayor observed that incredibly sensitive information can be deduced from a person’s movements (e.g., trips to psychiatrists, abortion clinics, AIDS treatment centers, gay bars, and places of worship). And, given how easy and cheap it is for the government to collect and then store and mine that data for years, she found such monitoring particularly likely to chill free expression.
Justice Sotomayor then again went further than the other Justices by stating that a reconsideration of the third-party doctrine may be required. Referring specifically to Internet browsing records, she found that people would find warrantless disclosure of browsing information to the Government unacceptable. By stating that secrecy should not be a prerequisite for privacy, Justice Sotomayor cast welcome doubt on the third-party doctrine.
Justice Sotomayor presents an incredibly pro-privacy position that will likely resonate with a generation that finds an expectation of privacy reasonable when paired with nuanced privacy settings, passwords, and encryption.
Justice Alito Concurrence: Justice Alito dismissed the majority’s reliance on a trespassory test and instead analyzed the case through Katz. Finding Jones’s reasonable expectation of privacy violated, Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in judgment.
Justice Alito began by criticizing the majority for not adequately explaining how the attachment or use of the GPS device constituted either a search or a seizure. There was no seizure because there was no meaningful interference with Jones’s possessory interest. And, as for a search, Justice Alito expressed skepticism: the placing of a GPS device on the car was not a search by itself, and the use of the device did not seem like a search either. He also faulted the majority for disregarding the central issue of the case: the use of GPS for long-term tracking, regardless of whether that tracking amounts to physical trespass.
In contrast to the majority, Justice Alito found that the Fourth Amendment should simply be understood as prohibiting every unjustifiable intrusion by the government upon an individual’s privacy, where physical trespass and technical search and seizure are neither necessary nor sufficient for finding such a Fourth Amendment violation. Through his analysis, Justice Alito found that while relatively short-term monitoring of a person’s movements on public streets does not violate a reasonable expectation of privacy, long-term GPS monitoring in investigations for most offenses does.
However, Justice Alito noted that technological changes may fundamentally alter popular privacy conceptions and, as a result, future applications of the Katz test. Specifically, while the public may find privacy losses brought on by new technologies as unwelcome, they may also accept them as inevitable. And, the belief that privacy losses are inevitable will then alter what counts as a reasonable expectation of privacy. Justice Alito thus ended by suggesting that legislation and not Fourth Amendment protection may be the better way to deal with these technological intrusions in the future.
Heather Whitney is a 2L at the Harvard Law School.