It is fair to conclude that the Court’s ruling in Jones was not as broad as many suggested. On the other hand, it was not as narrow as others suggested. If anything Scalia took the middle ground, and likely got to five votes because of it.
by Matthew L. Schafer
On January 23, the Supreme Court released its long-awaited opinion in United States v. Jones, a case asking whether government installation and subsequent use of a GPS device on the undercarriage of a citizen’s car constituted a search. The Court held that it did.
In Jones, a joint task force comprised of the members of the Federal Bureau of Investigation and Washington D.C.’s Metropolitan Police Department sought and received a search warrant to place a GPS device on the Jeep of Antoine Jones. The warrant the task force received required the GPS device be installed on the car in ten days within the District of Columbia.
Officers, however, messed up. They did not install the device within ten days — it was the eleven days. Moreover, when the officers did install the device on the car, they did so in Maryland instead of DC. Nonetheless, they still collected troves of information about Jones’ movement for twenty-eight days from the use of the tracking device.
In United States courts, when search warrants are not issued or officers fail to execute an issued warrant as the magistrate instructs, defendants can move to have the evidence gathered suppressed. Simply, if officers do not follow the rules, the evidence they gather cannot be used against the defendant, because the Fourth Amendment protects citizens from “unreasonable searches and seizures.”
Jones argued just this. He asked that the court suppress the evidence gathered as a result of the poorly executed warrant. At trial, a federal district court ordered that any evidence gathered from the GPS device while the car was in Jones’ garage (a historically private place) must be suppressed but evidence gathered while the car was on public roads need not be suppressed.
The trial court cited a well-known Supreme Court case when it issued its order. The Court decided the case, Knotts v. United States, in 1983, stating simply that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”
At its most basic, the Court in Knotts, acknowledged that a long line of precedents beginning with Katz v. United States held that a search within the meaning of the Fourth Amendment occurs when a person has a reasonable expectation of privacy in the thing searched and that expectation is one society is willing to recognize as legitimate. For example, a couple has a reasonable expectation of privacy in their own bedroom, and society would likely see such an expectation as legitimate.
On the other hand, because people do not have a reasonable expectation of privacy in their movements while in public (anyone can watch another in public after all), then the government could track Mr. Knotts’ movements on public roads using an antiquated beeper.
On appeal, however, the court held that Knotts did not apply to Mr. Jones, because in Knotts the Supreme Court “distinguished between the limited information discovered by use of the beeper—movements during a discrete journey—and more comprehensive or sustained monitoring of the sort at issue in this case.”
In short, the appellate court held that Jones is different from Knotts, because the officers tracked Mr. Jones a much greater amount of time. Therefore, the court held that “the whole of a person’s movements over the course of a month is not actually exposed to the public [and, as such, protected] because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.”
At oral argument in Jones, the government relied heavily on Knotts, despite the lower court’s ruling. Surprisingly, however, when the Supreme Court handed down its opinion last week, it did not rely on Knotts — its own case seemingly on point. Instead, the Court, through Justice Antonin Scalia ironically revived what forty-four years of law students have been taught is for all intents and purposes dead law–eighteenth century constitutional trespass.
“Jones’s Fourth Amendment rights do not rise or fall with the Katz [reasonable expectation of privacy test] . . . ,” Scalia stated for the Court. “At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”
It now appears, then, that a citizen need not always have a reasonable expectation of privacy in a thing to argue that a search occurred. (Or, perhaps, one could say that because property enjoys such a wide range of protection it per se carries with it a reasonable expectation of privacy in the property.)
Notably, in Knotts and another beeper tracker case, United States v. Karo, officers hid the beepers in a container with the consent of the owner of the container. Thereafter, the containers found their way into the suspect cars. Therefore, those cases did not control the result in Jones, Scalia wrote, because Mr. Jones never gave officers permission to place the GPS device directly on his car in the first place.
Thus, the Court held that the installation was, in law, a search, because it amounted to a constitutional trespass of property. What the Court did not decide, however, was whether the search was unreasonable. Indeed, officers can still perform a search without violating the Fourth Amendment if that search is “reasonable.” Specifically, the Fourth Amendment only protects citizens from “unreasonable searches and seizures.” This is what caused many commentators to argue that the 9-0 decision against the government was not as unfavorable to the government as everyone thought.
Despite warnings that the decision is not as broad as many argue, it seems quite possible that it is not as narrow as others argue. Indeed, “warrantless searches are presumptively unreasonable under the Fourth Amendment, [and] the government bears a ‘heavy burden’ of proving [an exception].” See, e.g., United States v. McClain, 444 F.3d 556 (6th Cir. 2005).
So how does a court know when a warrantless search is reasonable? Well, there are certain exceptions to the “warrant requirement” that the Court has carved out over the years. Such exceptions include: hot pursuit, a search incident to lawful arrest, plain view, plain feel, an exigent circumstance, and an automobile exception.
It isn’t necessary to explain what each exception is, it is only necessary to note that (1) many courts have never reached the question of whether attaching a GPS device to a car is unreasonable, because they applied the Katz test to the tracking and found that no search (reasonable or not) occurred in the first place under Knotts, and (2) attaching a GPS device does not fit nicely into any of the exceptions.
Of course, the “automobile exception” sounds applicable here, but it sounds applicable in name only. The exception is of an old vintage (first enunciated in the 1925 case, Carroll v. United States) and essentially allows officers to search a car when that officer has probable cause, “because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.” At its most basic, the automobile exception is based on the idea that physical evidence will be lost to the police if society does not allow officers to search a car when they have probable cause to believe it contains evidence.
In Carroll, the search was upheld because the Court was afraid that not upholding the search would have allowed Mr. Carroll, a rum-runner, to destroy or otherwise remove the liquor bottles hidden within the seats of the car.
Here, the same logic cannot apply to GPS tracking. Indeed, there is nothing that the officers need fear will be destroyed by requiring them to seek a warrant to install the device. There is nothing intrinsic in the car itself that is or contains evidence. There is nothing that will be lost to the officers necessarily; indeed, they can simply use less-invasive alternative methods (like a stake out, for example) to track the movements of a citizen. (As the D.C. Circuit stated in Jones, quoting the Supreme Court, “The fact that equivalent information could sometimes be obtained by other [lawful] means does not make lawful the use of means that violate the Fourth Amendment.”)
Thus, it is fair to conclude that the Court’s ruling in Jones was not as broad as many suggested. On the other hand, it was not as narrow as others seemed to suggest. If anything the Court took the middle ground, and likely got to five votes because of it. Nonetheless, as many have pointed out, there are still many many questions about technology and privacy that remain unanswered.