Supreme Court Extends 4th Amendment Protections in GPS Monitoring Case

On Monday, the Supreme Court delivered a limited victory (.pdf download) for privacy rights in United States v. Jones, holding that the police performed an unconstitutional search in this case. Although the majority opinion and two concurrences relied on different legal analyses, the decision signals the Court’s concern about the implications of new technologies for the Fourth Amendment’s protection of individual privacy.

District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking device on Jones's vehicle while it was in the District of Columbia and for ten days only. Instead, D.C. authorities placed the GPS device on Mr. Jones's car while it was located in Maryland and tracked Mr. Jones's car for a month. The device recorded Jones's vehicles movements continuously, 24 hours a day. Using the evidence gathered with the GPS device, authorities charged Mr. Jones with conspiracy to sell cocaine. 

At his trial, Jones moved to suppress the GPS evidence as an unreasonable search and invasion of his privacy in contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the police violated Jones’s reasonable expectation of privacy by putting the device on his car without a valid court order.

The Supreme Court unanimously affirmed the decision of the D.C. Circuit, however, the justices split 5-4 on their reasons for doing so. Justice Scalia, writing for the Court and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, held that it is a “search” under the Fourth Amendment for law enforcement to place a GPS tracking device on a car and to use the device to monitor that car remotely. The majority revived a property-based approach to the Fourth Amendment for situations such as this one, in which a physical trespass has occurred, but left untouched the current “reasonable expectation of privacy” approach where no physical trespass is at issue.

Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concurred in the judgment. However, Justice Alito would not have held that the installation of the GPS device was a search. Instead, he expressed his view that it was the long-term monitoring with the device that violated a reasonable expectation of privacy. He also criticized the majority for what he described as reliance on “18th Century tort law.” According to the concurrence, the majority’s property-based approach might not protect privacy as much as is required, particularly with the continuing advance of technology.

Justice Sotomayor, who joined the majority, also wrote a concurring opinion. In it, she signaled her openness to a potentially significant expansion of privacy rights. She stated that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

In sum, the majority’s holding in this case – and thus the law of the land – is that the installation and use of a GPS tracker on an automobile constitutes a “search.” Whether or not a warrant is required for such a search remains an open question, and one that will undoubtedly trouble privacy advocates. Nevertheless, the three opinions written in this case make it clear that the justices are concerned with what new technology means for personal privacy rights, a concern that will likely be fleshed out further in cases to come.

GPS Surveillance and the Fourth Amendment: Thoughts on United States v. Jones

Guest post by Daniel Solove

In United States v. Jones, FBI agents installed a GPS tracking device on Jones’ car and monitored where he drove for a month without a warrant.  Jones challenged the warrantless GPS surveillance as a violation of the Fourth Amendment.  The D.C. Circuit agreed with Jones.

On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car.  The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

The D.C. Circuit distinguished Knotts because there, the Supreme Court noted that the surveillance was limited and explicitly noted that more pervasive surveillance might be treated differently.   As the Court in Knotts stated that “if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”

The Supreme Court will determine if it agrees with this theory.   The Court has long held that there is no expectation of privacy in public.  This view has been frequently criticized as failing to recognize that people enjoy much practical obscurity in public and pervasive monitoring will dramatically undermine this obscurity.  Will the Court revisit its view about the lack of privacy in public given the changing capabilities of technology?

If the Court were to conclude that the Fourth Amendment required a warrant for GPS surveillance, it would have to define a coherent line between when a person in public has an expectation of privacy and when a person lacks such an expectation.  Such a line would be challenging to draw.

If extreme enough, quantitative differences can become qualitative differences.  But how does one articulate this into a workable approach in the law that isn’t too vague and mushy?

I was speaking with Peter Swire recently, who said that in order to convince the Court to draw such a line, it would be helpful for scholars to propose a workable test or approach for the Court to use.  I think he’s right.  So here’s my stab at it.

The Fourth Amendment applies to a surveillance technology used in public if the surveillance technology: (1)  extends significantly beyond human capabilities; and (2) is used in a manner beyond its ordinary use by the general public.

Let’s see how this might work with a few examples:

1. Flashlight.  A flashlight provides illumination where ordinarily humans might not be able to see.  But its ordinary or intended use is to allow people to see things in the dark, so it wouldn’t be covered by the Fourth  Amendment.

2. Thermal Sensors as Used in Kyllo.  The use of thermal sensors to detect heat patterns in the home would be regulated by the Fourth Amendment.  My approach would create a more sensible rationale than that used in Kyllo v. United States, 533 U.S. 27 (2001) (whether the technology is in general public use).  Thermal sensors are in general public use, but they are not ordinarily used to spy into people’s homes.

Applying this approach to GPS, the technology can track people much more pervasively than regular stakeouts or  following them around.   It thus extends significantly beyond human capabilities.  The general public does not use GPS as a way to track people’s movements.   They use it as a way to find places and navigate while driving.  Therefore, the police use of GPS to place a person under surveillance would be covered by the Fourth Amendment.  Knotts could be distinguished because the beeeper wasn’t as pervasive and thus could be argued not to have extended significantly beyond human capabilities.

I don’t agree with the reasonable expectation of privacy approach to the Fourth Amendment, but if the Court is going to stick with this approach and try to fit GPS surveillance within its existing caselaw, then the above test will hopefully be consistent enough with the Court’s caselaw and more coherent than the tests previously articulated by the Court.

This post originally appeared on Concurring Opinions.

Daniel J. Solove is the John Marshall Harlan Research Professor of Law at the George Washington University Law School.  He is also a Senior Policy Advisor at the law firm Hogan Lovells.  Additionally, he is the founder of TeachPrivacy, a company that helps schools with privacy issues.  An internationally-known expert in privacy law, Solove is the author of several books, including most recently Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011).

Supreme Court to Hear Argument in GPS Tracking Case

Tomorrow the Supreme Court will hear argument in the case of United States v. Jones. At stake is the right of individuals to be free from warrantless government tracking of their vehicle’s location through GPS technology.

District of Columbia police suspected Antoine Jones, a nightclub owner, of being involved in cocaine distribution. The warrant obtained by prosecutors allowed police to place a GPS tracking device on Jones’s vehicle while it was in the District of Columbia and for ten days only. Instead, D.C. authorities placed the GPS device on Mr. Jones’s car while it was located in Maryland and tracked Mr. Jones’s car for a month, in contravention of the warrant. The device recorded Jones’s vehicles movements continuously, 24-hours a day. Using the evidence gathered with the GPS device, authorities charged Mr. Jones with conspiracy to sell cocaine.

At his trial, Jones moved to suppress the GPS evidence as an unreasonable search and invasion of his privacy in contravention of the Fourth Amendment. The trial court refused to suppress the evidence and he was convicted and sentenced to life in prison. On appeal, the U.S. Court of Appeals for the D.C. Circuit found that the police violated Jones’s reasonable expectation of privacy by putting the device on his car without a valid court order.

The last relevant Supreme Court case, United States v. Knotts, allowed the use of beepers that send a signal to the police from a suspect’s vehicle for several hours only. The use of GPS devices for round-the-clock surveillance over a much longer period of time raises much greater concerns.

If the Supreme Court finds for the government in this case, it could pave the way for the use of technologically advanced tracking of individuals in ways that increasingly invade an individual’s private life.