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Want to Use a GPS-Tracking Device? Get a Warrant, Supreme Court Tells Police

January 23, 2012 at 12:00 AM EDT
The Supreme Court ruled unanimously Monday that police violated the Constitution by attaching a GPS-tracking device to a car owned by a Washington, D.C., club owner, eventually leading to a cocaine-trafficking conviction. Jeffrey Brown discusses their reasoning and the implications with The National Law Journal's Marcia Coyle.

JEFFREY BROWN: In 2005, police secretly attached a GPS device to a Jeep owned by Antoine Jones, a Washington, D.C., nightclub owner. Information gathered from tracking his movements eventually helped bring about his conviction for cocaine trafficking.

Today, though, the Supreme Court ruled the police action was a violation of the Constitution. The decision itself was unanimous, but the justices were divided in their reasoning, as they grappled with tricky issues of law, technology and privacy.

As always, Marcia Coyle of The National Law Journal is here to walk us through the decision.

Welcome back.

MARCIA COYLE, The National Law Journal: Thanks, Jeff.

JEFFREY BROWN: All right, so fill in some of the facts of this case. For one thing, this surveillance went on for quite a while.


The GPS device was attached to the underbelly of the — Jones’ Jeep Grand Cherokee. And the police monitored the Jeep’s movements 24 hours a day for 28 days.

JEFFREY BROWN: So the court ruled unanimously in its result. . .


JEFFREY BROWN: . . . written by Justice Scalia. Tell us about that.

MARCIA COYLE: Well, first of all, it was the United States that brought this appeal to the Supreme Court. And the United States argued basically that this wasn’t a search within the Fourth Amendment because Mr. Jones had no reasonable expectation of privacy in the underbelly of his jeep or on the roads on which the jeep traveled, public roads that everybody could see.

Justice Scalia in his opinion today rejected that argument. He said that the Fourth Amendment for most of our nation’s history has embodied a special concern for government trespasses into the areas that the Fourth Amendment protects.

And those areas are our right to be secure in our persons, houses, papers and effects. The vehicle is an effect, he said. When the government obtains information through a physical intrusion into one of those protected areas, it is a search.

JEFFREY BROWN: So he’s saying it’s different than if the police just followed this car for all that time, something fundamentally different in the technology that’s invasive?

MARCIA COYLE: It’s actually the physical attachment, plus the obtaining — the use of it to obtain the information. He said those are the two elements that you need that equal a search under the Fourth Amendment.

JEFFREY BROWN: Now, four justices — this is the interesting part here — they went along with the decision, but not with Justice Scalia’s reasoning.

MARCIA COYLE: Yes. Right, exactly.

Justice Alito wrote separately. And he was joined by Justices Ginsburg, Breyer and Justice Kagan. And he felt there was a problem with this trespass approach to the Fourth Amendment. He said, for example, if the government persuaded or ordered auto manufacturers to install GPS devices in every vehicle, the Fourth Amendment wouldn’t provide protection for our rights.

JEFFREY BROWN: So, if it was there already, as opposed to the police physically. . .

MARCIA COYLE: Right, there was no physical intrusion on a protected right.

He said the best way to approach this is to look at whether there was a reasonable expectation of privacy in these circumstances. He explained that short-term monitoring by GPS devices may accord with what our expectations of privacy are. Long-term may not. The court, he said, wasn’t going to provide any bright lines here.

It was enough to say, he said, that this search crossed the Fourth Amendment line before the four-week period was up.

JEFFREY BROWN: But he’s arguing for or at least groping towards a — I guess a more expansive notion of privacy in the technologic areas.

MARCIA COYLE: He absolutely is. And so did Justice Sotomayor, who joined Justice Scalia’s opinion but wrote separately.

Both of them noted that, today, there are many types of surveillance that don’t involve physical intrusion. And they talked about those like, the cameras at intersections that are catching speeders.


MARCIA COYLE: Justice Sotomayor even said that it may be time to reexamine the premise that information given voluntarily to third parties is — that there’s no reasonable expectation of privacy in that, because we give so much information through Internet transactions to the government for various reasons.

JEFFREY BROWN: And there’s shifting even by the day, right, in terms of how much we give and routinely?

MARCIA COYLE: Exactly. Yes, and that’s the tricky part for the court and why I think this is a narrow decision, and the court is treading very cautiously here, because, as technology changes, so do our expectations of privacy.

And a rule laid down today may not comport with that expectation five to 10 years.

JEFFREY BROWN: Well, so, therefore, how significant — how do you parse this in terms of significance when you get a — this kind of decision with different kinds of reasoning and only going so far?


MARCIA COYLE: Well, I think together the opinions send a very clear message, especially to law enforcement, that if you want to use something like a GPS tracking device, get a warrant.

JEFFREY BROWN: That’s clear, right?

MARCIA COYLE: Absolutely, and also that the court is leaving, as it says, as Justice Scalia pointed out, for another day the more difficult questions that are obviously out in the lower courts, but will get to the Supreme Court. They’re keeping an eye on how this technology evolves and how you and I react to it.

JEFFREY BROWN: This goes back — I remember the argument, because you were here for the argument.


JEFFREY BROWN: And they were talking about George Orwell and “1984.”

MARCIA COYLE: Yes, “1984.”

JEFFREY BROWN: And they were talking about the changes in technology. So, they are very aware that these kinds of questions about technology, privacy and law are unfolding by the day. And they will have to deal with it for a long time to come.

MARCIA COYLE: Absolutely.

And they have begun to do that. Terms ago, they had, if you recall, the case involving the Fourth Amendment search of police pagers for their text messages. And even there, they wrote a very narrow decision. They’re moving very cautiously in this area.

JEFFREY BROWN: And in the meantime, Mr. Jones, Antoine Jones, his case?

MARCIA COYLE: His conviction has been reversed. It was reversed by the lower court in this case. It will be up to the prosecution to decide whether they have enough evidence without the GPS information to retry him.

JEFFREY BROWN: All right, Marcia Coyle of The National Law Journal, thanks, as always.

MARCIA COYLE: My pleasure, Jeff.