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U.S. Constitution Title: United States v. Jones : GPS Monitoring, Property, and Privacy Richard M. Thompson II Legislative Attorney April 30, 2012 Summary In United States v. Jones , 132 S. Ct. 945 (2012), all nine Supreme Court Justices agreed that Jones was searched when the police attached a Global Positioning System (GPS) device to the undercarriage of his car and tracked his movements for four weeks. The Court, however, splintered on what constituted the search: the attachment of the device or the long-term monitoring. The majority held that the attachment of the GPS device and an attempt to obtain information was the violation; Justice Alito, concurring, argued that the monitoring was a violation of Jones’s reasonable expectation of privacy; and Justice Sotomayor, also concurring, agreed with them both, but would provide further Fourth Amendment protections. This report will examine these three decisions in an effort to find their place in the body of existing Fourth Amendment law pertaining to privacy, property, and technology. In Jones , the police attached a GPS tracking device to the bottom of Jones’s car and monitored his movements for 28 days. At trial, the prosecution relied on Jones’s movements to a stash house to tie him to a drug conspiracy. Jones was convicted and given a life sentence. The United States Court of Appeals for the District of Columbia Circuit reversed, holding that the evidence was unlawfully obtained under the Fourth Amendment. The Supreme Court agreed. The majority, speaking through Justice Scalia, explained that a physical intrusion into a constitutionally protected area, coupled with an attempt to obtain information, can constitute a violation of the Fourth Amendment. Although the Court’s landmark decision in Katz v. United States , 389 U.S. 347 (1967), supposedly altered the focus of the Fourth Amendment from property to privacy, the majority argued that it left untouched traditional spheres of Fourth Amendment protection—a person and his house, papers, and effects. Because the police had invaded Jones’s property—his car, which is an effect —that was all the Court needed to hold that a constitutional search had occurred. The majority’s test, however, provides little guidance in instances where the government need not physically install a device to conduct surveillance, for instance, by using cell phones or preinstalled GPS devices in vehicles. To understand how the Court may rule on these technologies, one must look to the two concurrences, which provide a more global interpretation of the Fourth Amendment. Justice Alito, writing for a four-member concurrence, would have applied the Katz privacy formulation, asserting that longer-term monitoring constitutes an invasion of privacy, whereas short-term monitoring does not. He left it to future courts to distinguish between the two. Justice Sotomayor’s concurrence appears to provide the most protection, finding that both the trespass approach and the privacy-based approach should be utilized. She also questioned the rule that any information provided to a third party, which occurs in many commercial transactions like banking or computing, should lose all privacy protections. Although all three opinions concluded that the government’s action in Jones was a search, none expressly required that police get a warrant in future GPS tracking cases. (The government forfeited the argument.) Further, there is no clear indication of the level of suspicion—probable cause, reasonable suspicion, or something less—tha t is required to attach a GPS unit and monitor the target’s movements. Additionally, there have been several bills filed in the 112 th Congress, including Senator Patrick J. Leahy’s Electronic Communications Privacy Act Amendment Act of 2011 (S. 1011) and Senator Ron Wyden’s and Representative Jason Chaffetz’s identical legislation, S. 1212 and H.R. 2168, the Geolocational Privacy and Surveillance Act (GPS bill), that would require a warrant based upon probable cause to access geolocation information.
Poster Comment: Hey Grand Island... I told you so.
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