GPS Tracking by Police Violated Fourth Amendment, Justices Rule

Moving cautiously in an era of rapidly changing technology, the U.S. Supreme Court ruled on Jan. 23 that law enforcement's warrantless installation and use of a GPS device to track a suspect's vehicle violated privacy rights protected by the Fourth Amendment.

"It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information," wrote Justice Antonin Scalia for the unanimous Court. "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."

The decision in United States v. Jones, 10-1259, was a significant defeat for the government, which did not win one vote for its arguments even as the justices divided, 5-4, on the rationale for the judgment.

The Jones decision affirmed a ruling by the U.S. Court of Appeals for the District of Columbia Circuit, which had reversed the conspiracy conviction of drug trafficker Antoine Jones. The appellate panel found that the warrantless use of a GPS device to monitor Mr. Jones' whereabouts for 28 days violated the Fourth Amendment.

The Jones case began in 2004. At that time, a federal and local law enforcement task force began investigating the defendant, a nightclub owner and operator, for alleged cocaine trafficking.

Part of the task force effort involved an attempt to locate co-conspirators and the drug stash locations by conducting traditional visual surveillance and installing a camera near the defendant's nightclub.

The task force also covertly installed a GPS tracking device on Mr. Jones' Jeep Grand Cherokee. Originally, the task force obtained a warrant to install the device, but installed the device one day after the expiration of the warrant. Using information obtained from the device, the task force was able to locate the defendant and obtain surveillance photos and videos at a suspected stash house in Maryland.

Later, based on intercepted phone calls, the task force determined that the defendant was going to receive a shipment of cocaine in October 2005. It executed search warrants at various locations and recovered nearly $70,000 from Mr. Jones' Jeep, as well as a significant quantity of cocaine, thousands of dollars in cash, firearms, digital scales and other drug paraphernalia.

Mr. Jones was charged with conspiring to distribute cocaine and other charges. He was convicted and sentenced to life imprisonment.

Fourth Amendment

In his opinion, Justice Scalia wrote that, for most of the nation's history the Fourth Amendment had been understood to have a special concern for government trespass upon the areas stated in its text: "persons, houses, papers and effects." The vehicle in this case was an "effect," he wrote.

"Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a 'search' within the original meaning of the Fourth Amendment," he wrote. "Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred. Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information."

The Court rejected the government's argument that no search had occurred because Mr. Jones had no "reasonable expectation of privacy" in the area of the Jeep accessed by government agents—its underbody—and in the locations of the Jeep on public roads.

The Court declined to address the government's alternative argument that, even if a search occurred, it was lawful because the officers had reasonable suspicion, even probable cause, to believe that Mr. Jones was a leader in a large-scale cocaine distribution conspiracy. The government failed to make that argument in the lower court and thus forfeited it, Justice Scalia said.

Justice Samuel Alito Jr., joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, concurred in the judgment. Justice Alito said he would analyze the question, not by relying on common-law trespass, but by asking whether Mr. Jones' reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

Explaining his problem with the Scalia approach, Justice Alito wrote, "If long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the federal government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court's theory would provide no protection."

And, he added, the Court's approach leads to incongruous results.

"If the police attach a GPS device to a car and use the device to follow the car for even a brief time, under the Court's theory, the Fourth Amendment applies. But if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints," he wrote.

The best solution to privacy concerns in cases involving "dramatic technological change," Justice Alito wrote, may be legislative. But until legislatures act, he added, the best approach is to apply the "reasonable person" standard. Under that standard, short-term monitoring on public streets is reasonable, he wrote, but long-term monitoring in most investigations violates privacy expectations.

Justice Sonia Sotomayor, in a separate concurrence, sympathized with both approaches but voiced the broadest approach to, and concern for, privacy in today's technological era.

"It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties," she wrote. "This approach 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."

Mr. Jones' counsel, Stephen Leckar of Washington's Shainis & Peltzman, said the decision reveals "the emergence of two powerful new voices in Fourth Amendment and privacy cases: Justices Alito and Sotomayor."

Acknowledging that "big issues remain," Mr. Leckar said, "The ultimate decision rested on the narrowest grounds but Justice Alito's concurrence suggests four, if not five, justices also have grave concerns when [police] actions venture into areas most people regard as verboten."

Andrew Pincus of Mayer Brown, who filed an amicus brief supporting Mr. Jones on behalf of the Center for Democracy and Technology, said this decision and the justices' decision two terms ago in a search case involving text messages on police pagers, show the Court balking at broad, new rules pushed by the law enforcement community.

"It will tread pretty cautiously in this area," Mr. Pincus said. "It is not going to adopt narrow, narrow constructions of the Fourth Amendment."

New York Issue

The nation's high court came to the same conclusion as a 4-3 majority on New York's Court of Appeal in its 2009 decision in People v. Weaver, 12 NY3d 433 (2009), which found the surreptitious placement of a GPS tracker by police acting without a warrant was illegal.

Chief Judge Jonathan Lippman in Weaver held that since the U.S. Supreme Court was still then silent about the legality of GPS information-gathering without police warrant, the majority of the Court of Appeals would carve an exception invalidating the practice under the New York's Constitution.

Judge Lippman held that advances in electronics have placed so many new weapons in the arsenals of law enforcement that, if misused by authorities, they could result in unconstitutional searches in situations where suspects have a reasonable expectation of privacy.

The majority of the Supreme Court held that the Fourth Amendment violation under the U.S. Constitution occurred because protections extended to automobiles as property.

Justice Sotomayor in her concurrence adopted the same reasoning as the Lippman court and quoted Weaver on the intrusiveness of tracking devices.

"Disclosed in [GPS] data…will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on," she wrote, quoting Weaver.

The Court of Appeals suppressed evidence that New York State Police said put Scott C. Weaver, or at least his van, in close proximity to a meat market and an Albany-area Kmart about the time they were burglarized (NYLJ, May 13, 2009).

A State Police spokesman said Weaver has prompted troopers since 2009 to secure warrants for placing GPS devices on suspects, though he declined to say how often the investigatory devices are used.

"It's nice to see the Supreme Court following our Court of Appeals and particularly nice to see Justice Sotomayor's pivotal concurrence singling out the Weaver decision's recognition of the uniquely invasive potential of GPS tracking," said Christopher Dunn, associate legal director of the New York City Liberties Union. "Weaver perfectly illustrates the importance of the Court of Appeals charting its own constitutional course and shows that the Court can be a national leader."

The NYCLU filed an amicus brief in support of suppression of the evidence against Mr. Weaver.

The group is currently challenging the use of a GPS device on the personal vehicle of a state worker suspected of falsifying time sheets. Employee Michael Cunningham has an appeal as of right in that civil case because the Appellate Division, Third Department, ruled by a 3-2 margin that the state inspector general had a right to use the tracking device when other investigatory measures had failed.

Coincidentally, on Jan. 26 at the New York State Bar Association's annual meeting at the Hilton New York, the group's Criminal Justice Section will sponsor a discussion about the Fourth Amendment implications of the use by authorities of information from GPS devices, cell phones, computers and other electronic equipment.

The presentation, to be moderated by Acting Supreme Court Justice Barry Kamins, the administrative judge for criminal matters in New York City, begins at 9 a.m.

@|Marcia Coyle, a reporter for The National Law Journal, an affiliate, can be contacted at mcoyle@alm.com. Joel Stasheno can be contacted at jstashenko@alm.com. Additional reporting by Joshua A. Engel of Law Technology News, an affiliate.