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U.S. Supreme Court: GPS tracking and the Fourth Amendment

The “world” changed today, substantively, and in the right direction.

In a UNANIMOUS decision today, the United States Supreme Court ruled that police violated the rights of Washington D.C. co-owner of the nightclub, “Levels,” Antoine Jones, when they planted a GPS (Global Positioning System) tracking device on Jones’ Jeep OUTSIDE the TERMS of an issued warrant and used the device to track him for 28 days. The tracking led to almost 100 kg (220 lbs.) of cocaine, about $850,000 in cash, and a life-in-prison sentence for Jones. The case is U.S. v. Jones (10-1259) (PDF).

(For those who have been “living in a small cabin in Montana” for a number of years, GPS systems allow the real-time tracking of the movement of individuals through a system of orbiting satellites.)

FIVE of the Justices said that secretly placing the device and monitoring the movement of Jones for several weeks constituted a “search” by the government and violated the Fourth Amendment Constitutional Rights of Jones.

The Fourth Amendment of the U.S. Bill of Rights states:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”

The other FOUR Justices concluded that the search was improper but reasoned that it was improper because the 28-day search violated the suspect’s expectation of privacy.

In the case, a warrant had been granted to authorities, but the installation of a GPS unit was authorized ONLY within 10 days and ONLY within the District of Columbia. Agents did not install the GPS until the 11th day, and they secretly installed in in the state of Maryland. Then, agents monitored Jones as he traveled around for 28 days.

The U.S. Supreme Court was asked whether such covert surveillance violated the Fourth Amendment rights of Jones and whether the surveillance should be considered to be a “search,” a “seizure,” or both! One of the issues under consideration was whether movement in a “private” vehicle on city streets is “public” in nature.

Although the nine Justices decided unanimously in favor of Jones, their different legal analyses will likely create confusion among those in the Executive Branch of government, who are charged with enforcing the law.

Good.

The difference will ALSO cause the Justices additional reflection upon extensions of their decision, particularly as it relates to that far-more-common GPS tracking device that is required by law in every modern cell phone in the United States, and perhaps worldwide.

Justice Antonin Scalia wrote the majority opinion of the Court, that a person’s property is legally sacred and that the government must JUSTIFY placing a GPS device on the vehicle. Scalia opined that modern technology does not change this centuries-old concept! Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor agreed.

“The government physically occupied private property for the purpose of obtaining information,” said the ruling. “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

However, a group of four Justices led by Samuel Alioto (including Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan) concluded that the reasoning in the majority opinion was “artificial” and did not address the larger issues of the electronic age, including GPS. Alioto wrote that the Court should have used this decision to clarify the limits of the police in monitoring Internet use and wireless personal communications devices like cell phones.

“The availability and use of these and other devices will continue to shape the average person’s expectations about the privacy of his or her daily movements,” Alito wrote. “In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.”

Good luck with THAT, Justice Alioto! Intelligent decisions about individual privacy, or about constitutional rights, in Congress (especially RECENTLY) seem a bit much to expect! I would prefer to trust the courts.

Alioto said that the U.S. Congress and most states have not kept up with the times (and whose fault is THAT? :-) ) leaving a citizen’s expectations of privacy in the hands of the courts. Four weeks of tracking was more than enough time to justify police getting a search warrant, he reasoned.

The U.S. Supreme Court Justice MAY choose to take on a related case, that of an inmate in Oregon, Juan Pineda-Moreno, who was tracked to a marijuana farm that he was cultivating, using a GPS tracker. The Federal Appeals Court in San Francisco UPHELD his conviction, ruling that the placement and tracking was not a “search,” and therefore, no search warrant was needed.

Personally, I would like the Court to consider a case in which someone was tracked using his/her cell phone, but perhaps we’ll get there eventually.

-Bill at

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