This is re-posted from the Haren Law, LLC website:

The case was United States v. Jones, ( full opinion here) and — make no mistake — it was a huge victory for privacy advocates and civil libertarians. The Supreme Court affirmed the lower court’s holding that warrantless GPS tracking of a person’s car violates the 4th amendment’s prohibition of unreasonable searches and seizures. The Court rejected the government’s argument that a person has no right to privacy with respect to movements in public, and stressed that the 4th amendment protects us from government trespasses onto personal property.

In what may be a bit of foreshadowing regarding future 4th amendment decisions, Supreme Court justice Sonia Sotomayor (who in 2010 spoke at Cleveland-Marshall College of Law) suggested that the Court should re-examine how privacy rights are viewed in a digital age. Her suggestion could lead to a vastly expanded conception of privacy, one that would be lauded by digital privacy advocates.

The Important Facts

Antoine Jones owned a nightclub in Washington D.C. from which the government believed he was trafficking drugs. The government obtained a warrant to attach a GPS tracking device to the Jeep owned by Jones’s wife, of which Jones was the exclusive driver. The warrant stated that the GPS had to be attached to the vehicle within 10 days, and had to be attached while the Jeep was in Washington, D.C. Surprising nobody who has ever dealt with government, the authorities attached the GPS 1 day late and while the Jeep was in Maryland. The failure to comply with the terms of the warrant means that the GPS was attached without one.

At trial, the District Court (trial court) suppressed evidence obtained from the GPS device while it was parked at Jones’s home, but admitted all other evidence from the device since “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another" (quoting United States v. Knotts). Jones was convicted of various counts relating to cocaine trafficking and sentenced to life in prison.

However, on appeal the United States Court of Appeals for the District of Columbia Circuit reversed, holding that a warrant was required to attached the device to Jones’s vehicle. Because the government had no valid warrant, the evidence was obtained in violation of the 4th amendment. The Court of Appeals reversed Jones’s conviction.

The government appealed again, and the United States Supreme Court granted certiorari.

The Law

The 4th amendment to the United States Constitution reads:

“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

The Supreme Court has held that where the government’s search would constitute a common law trespass, the government must get a warrant before searching. See Olmstead v. United States. The Court has supplemented that test by also holding that the government must get a warrant to search areas where a person has a “reasonable expectation of privacy." Katz v. United States.

The Issues

1) Whether the warrantless use of a GPS tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment.

2) Whether the government violated respondent’s Fourth Amendment rights by attaching the GPS tracking device to his vehicle without a valid warrant and without his consent.

The Majority Opinion

The Supreme Court unanimously held that the search required a warrant, thereby affirming the Circuit Court’s decision to reverse Jones’s conviction. The Court did offer three opinions: the Majority Opinion authored by Justice Scalia and joined by Justices Kennedy, Thomas, Roberts, and Sotomayor; a Concurring Opinion authored by Justice Sotomayor; and a Concurring Opinion authored by Justice Alito and joined by Justices Ginsburg, Breyer, and Kagan.

The majority opinion rests on an understanding of private property rights and their relation to government action. In this case, the government attached a GPS device to the defendant’s vehicle, one of his “effects" within the meaning of the Fourth Amendment. The law, Scalia wrote, holds a special place in its heart for property rights:

“The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures"; the phrase “in their persons, houses, papers, and effects" would have been superfluous."

Scalia’s majority opinion does stress, though, that while Fourth Amendment searches involving property rights may be limited, the Fourth Amendment still protects individuals from government action where the individual has a “reasonable expectation of privacy." Katz. Scalia wrote:

“But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test."

Because the case at hand clearly involved a “trespass," a search has occurred and the government was required to obtain a warrant.

What we are left with then, is a two-tiered analysis for determining when a warrant is required. First, the trespassory test: if it would amount to a common law trespass, then a warrant is required. Second, the reasonable-expectation-of-privacy test: if the government would intrude upon a place where a person has a reasonable expectation of privacy, then a warrant is required. If there has been a trespass, then the second test is superfluous in application.

The Sotomayor Concurrence

What I find the most interesting part of this decision is the concurrence authored by Justice Sonia Sotomayor. She notes that traditional constraints on government action, such as lack of resources or community hostility, are of little impact now that surveillance has become so convenient and cost-efficient. She discusses the risks associated with GPS tracking, in that almost everything about a person can be known by tracking his or her movements:

“I would ask whether people reasonably expect that their movements will be recorded and aggregated in a matter that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques . . ."

And then we have comments like this, where Justice Sotomayor may be setting the stage for the great digital privacy battle to be hashed out between the government, defendants, and privacy advocates over the years to come:

“More fundamentally, it may be necessary toreconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. . . 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."

Justice Sotomayor continues:

“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, or 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.I would not assume that all information voluntarily disclosed to some member of the public for a limited purposes is, for that reason alone, disentitled to Fourth Amendment protection."

That last sentence alone should be enough to make every civil libertarian or digital privacy advocate get a bit misty-eyed. While that issue was not at issue in this case, therefore making the statement of somewhat limited presidential value, look for future cases involving government requests for IP addresses, lists of web sites visited, social media history, online banking records, etc., to rely on that statement to support the broadening of digital areas protected by the Fourth Amendment.

That being said, it is discouraging that no other Justices joined with Justice Sotomayor’s concurrence. Some may not have joined because she spoke about issues not directly litigated before the Court, while others assuredly declined to join because they disagree with her statement. Only time will tell whether Justice Sotomayor can influence other members of the Court to join her opinions in later cases.

The Alito Concurrence

Justice Alito’s concurrence is probably the least meaningful of the three opinions in this case, as he (and the Justices who joined) would hold that the Court should exclusively use a reasonable-expectation-of-privacy test. The result in this case would be the same, the suppression of the evidence and the affirmation of the Circuit Court’s decision reversing Jones’s conviction.

What This Case Means

It means get ready for the ride. This case is a victory for individual liberty and sets the stage for the great privacy battles of the next decades. It means that the government cannot track you with a GPS device unless it gets a warrant and re-affirms your right to be free from unreasonable government interference in your person, house, papers, and effects. Happy Driving.

If you would like to speak with a Cleveland criminal defense attorney, you may contact Thomas G. Haren with Haren Law, LLC at (216) 503-2232.

Please remember that this is not legal advice. It is provided for informational purposes only.