United States v. Jones

http://www.supremecourt.gov/opinions/11pdf/10–1259.pdf

SCOTUS ruled today that placing a GPS tracking device on a defendant’s vehicle is a search within the meaning of the 4th Amendment.

This is a 5–4 opinion, split between whether the act of placing a GPS tracking device is a search or whether the long-term surveillance that the defendant was subjected to by way of the GPS tracker violated his reasonable expectation of privacy.

The one thing I want to add is that J. Sotomayor’s concurrence was a surprisingly refreshing bonus. Here is a Supreme Court justice who seems to have at least a basic grasp of technology and technology’s implications on the 4th Amendment.
Having her and J. Scalia (who has his own encouraging views on technology’s impact on the 4th Amendment) on the bench, I’m ever so sightly optimistic about the future of our rights.

UPDATE

After reading numerous commentaries on the case, my feelings about this decision have not changed. The majority, drawing fire from critics of the modern take on the 4th Amendment, strictly adheres to the traditional 4th Amendment jurisprudence. Meanwhile, the minority wants a new test to determine when
4th Amendment rights have been violated, a stance championed by many.
However, as things stand, I believe that the majority’s opinion is the better option for protecting our individual rights.
Short-term surveillance isn’t too intrusive? Call me a cynic but I don’t like any option that let’s the State start without a warrant.

UPDATE AGAIN

After thinking about this decision some more, and after discussing it with some people, I’m no longer so sure of my position.

The decision is still an excellent one in terms of placing GPS trackers on vehicles. According to the majority, placing any GPS tracker, even for an afternoon, is a search and would require a warrant or exigent circumstances. Alito’s minority might be willing to allow that without a warrant since such short-term surveillance is not too intrusive of a person’s reasonable expectation of privacy.

However, in terms of the farther reaching impact of 4th Amendment law, Alito’s test could very well be much more helpful.
In Baltimore, there are police surveillance cameras on almost every corner of the “dangerous neighborhoods.” According to US v. Jones, an argument could be made that such long-term surveillance would require a warrant before… using the video footage? I’m not entirely clear on how this would play out, but it does make for some interesting ideas.

I finally got around to actually reading the decision in State of Wisconsin v. Michael Sveum instead of viewing all the typing heads. (On the blog circuit they’re all typing heads, not talking heads.)
At first glance, I felt that the court came to the difficult but correct decision — after all, we do drive in public. I was going to go my merry way when I realized that the decision still bothered me, so sat back and tried to think it through.

The State claims, and the court affirms, that there was no expectation of privacy by the defendant since he was driving in a location visible to the general public. The court relies on US v. Knotts, 460 U.S. 276 (1983):

A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. When [one of the defendant’s accomplices] traveled over the public streets he voluntarily conveyed to anyone who wanted to look the fact that he was traveling over particular roads in a particular direction, the fact of whatever stops he made, and the fact of his final destination when he exited from public roads onto private property.

… [N]o … expectation of privacy extended to the visual observation of [the] automobile arriving on [the private] premises after leaving a public highway, nor to movements of objects such as the drum of chloroform outside the cabin in the “open fields.”

Visual surveillance from public places along [the] route or adjoining Knotts’ premises would have sufficed to reveal all of these facts to the police.

Emphasis added.

That’s fine, but what if he had decided he felt like having some privacy and drove to the woods to commune with nature? What if he was a deeply private person and went out late at night to a bar, expecting everyone who would recognize him to be sleeping. Shouldn’t we have the right to expect privacy, despite using public roads?

The court claims that since the information would have been available using methods that do not require a warrant, physically attaching a GPS unit to your car does not require a warrant. The court relies on US v. Garcia, 474 F.3d 994 (7th Cir. 2007):

[I]f police follow a car around, or observe its route by means of cameras mounted on lampposts or of satellite imaging as in Google Earth, there is no search. Well, but the tracking in this case was by satellite. Instead of transmitting images, the satellite transmitted geophysical coordinates. The only difference is that in the imaging case nothing touches the vehicle, while in the case at hand the tracking device does. But it is a distinction without any practical difference.

Emphasis added.

Why is there no “practical difference”? When was the last time local police used satellites to track an ordinary person’s car? Would they really have been able to track Mr. Sveum’s driving activity without the physical GPS unit?

Like I started with, I see where the court is coming from, and I’m familiar with the “Bad facts = Bad law” rule. It’s just too reminiscent of 1984 for me.

UPDATE
I just read Scott Greenfield’s post about the NY Court of Appeals requiring, in a 5–4 majority, warrants for GPS tracking. Good for New York!
I commented there and Scott helped clarify my murky concerns regarding Wisconsin’s decision.