Warrant Necessary for GPS Tracking Says Supreme Court
In United States v. Jones, the Supreme Court ruled unanimously that law enforcement officials must obtain a search warrant before installing a GPS device to monitor and track criminal suspects. Although unanimous, the Court’s reasoning was fractured and the Court left open many questions about how advancing technology must be balanced with the Fourth Amendment’s privacy expectations and protections against unreasonable searches.
The facts of the case are straightforward: In 2004, Antoine Jones came under suspicion of narcotics trafficking and became a target for investigation by the FBI and the District of Columbia Metropolitan Police Department. After collecting information for almost a year, in 2005 the Government applied for a warrant authorizing the use of an electronic tracking device to be placed on a vehicle used by Jones. Based on the information received from the GPS device, Jones was indicted on multiple counts, including conspiracy to distribute cocaine and cocaine base. When the Government sought to introduce the GPS tracking evidence, Jones moved to suppress the evidence because, while the warrant required that the GPS device be installed in the District of Columbia within ten days, the device was not installed until the eleventh day and was installed in Maryland. As the warrant was not complied with, the Government urged that no warrant was necessary to install the GPS device.
Writing for the majority, Justice Scalia concluded “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movement, constitutes a ‘search’” under the Fourth Amendment. The Court emphasized that, by placing a GPS device on a vehicle Jones used, it “physically occupied private property for the purpose of obtaining information.” In other words, the majority found the application of the “reasonable expectation of privacy” test unnecessary because the Government physically intruded upon one of Jones’ “effects” by placing the tracking device on the vehicle. This physical intrusion alone mandated a warrant.
Justice Alito, joined by Justices Ginsburg, Breyer and Kagan, concurred in the judgment, but criticized the majority for applying “18th-century tort law” to a “21st-century surveillance technique.” Instead, Justice Alito analyzed the constitutional question “by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements he drove,” rejecting the majority’s trespass-based approach. While acknowledging the problems inherent in this test, namely how ever-expanding technology can change individual’s reasonable expectations of privacy and how such judgments may be better left to the elected branches of government, Justice Alito nevertheless concluded “that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment.”
In perhaps the most interesting opinion, Justice Sotomayor agreed with the majority that a search occurred in this case based on the Government’s physical intrusion on the vehicle Jones was driving, but noted that because the “Fourth Amendment is not concerned only with trespassory intrusions on property” the majority’s test was not particularly useful. In addressing the “reasonable expectation of privacy” test, she noted the necessity of reconsidering “the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” In her view, such a premise “is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” She then cataloged the many ways in which individuals disclose information via cell phone use, web browsing and on-line purchases, concluding: “I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, month or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”
The Jones decision left open many questions regarding how the Fourth Amendment would be applied to technologies which often require the disclosure of private information to various non-governmental entities such as cellular phone and Internet service providers. While those questions were not decided by the Court, the divergence of opinion among the Justices demonstrates that the Court will be wrestling with these issues for years to come.
