Not that commentary on either issue is
relevant at this point, but I thought I would inaugurate my
contribution to the white noise of "law blogs"
by addressing two stories in the last few months that were -- nearly
universally -- badly reported.
The first is the Supreme Court decision
in United States v. Jones. Jones was a Fourth Amendment case that dealt with GPS tracking of a suspect's vehicle. A warrant was issued, allowing the government to install a GPS tracking device on the vehicle within 10 days of the warrant's issuance. The device, however, was installed on the 11th day. The trial court allowed most of the information gathered from the GPS to be entered into evidence, finding that there was no search, as Jones had no reasonable expectation of privacy when traveling on public roads. The court of appeals reversed, and the case made its way to the Supreme Court. So what did the Supreme Court hold?
The headlines addressing the decision that I saw were almost invariably some formulation of "Warrant needed for GPS tracking, high court holds." The Court, however, held no such thing. What the Court did hold, -- per the Opinion delivered by Scalia (joined by Roberts, Kennedy, Thomas and Sotomayor) -- is that the Fourth Amendment protects individuals from intrusions that would be considered trespassory in the common law at the time of the Fourth Amendment's adoption, where those intrusions are made in an attempt to gather information. The expectation of privacy tests, then, are seen to be in addition to that most basic protection, rather than replacing it. In the Jones case, the act of installing the GPS on the vehicle in question with the requisite intent to gain information through monitoring was found to be trespassory, and so the Court found that there was a Fourth Amendment search.
The good news for privacy advocates is that this does strengthen Fourth Amendment protections: a trespassory act to gain information can be a Fourth Amendment search whether or not the expectation of privacy test is met. The news is not, however, as good as reported.
First, vehicles have always had a special place in Fourth Amendment jurisprudence. Vehicular searches so far have required probable cause, but not necessarily a warrant. The Opinion leaves open the question as to whether a warrant would be required in a case whose facts met Jones, and does so explicitly:
Second, and more troubling, is that the trespassory protection does not apply to some of the most questionable possible uses of GPS tracking. For example, monitoring GPS devices that are already installed on the vehicle, or similar techniques which the court has already faced: planting a monitoring device on another object before the individual takes possession of that object.
Alito's concurrence will likely be found applicable in cases such as these, where there wasn't a trespassory installation. That concurrence rejected the idea that the installation and monitoring should be viewed as a single act, holding instead that the installation was not a search as such -- presumably because the installation itself does not gather any information. Further, under both Scalia's and Alito's rationale, the actual monitoring of a GPS device is still not a search in and of itself, as the person is using public roadways and thus has no reasonable expectation of privacy. It becomes a "search" only after some protracted, unspecified period of time. In this case, 4 weeks of monitoring. So, the monitoring itself is still not a search, and even when it does constitute a search it's unclear when such a search would need a warrant.
Finally, in explaining the rationale behind finding a Fourth Amendment search in longer-term GPS monitoring, Alito's concurrence opens up an interpretation of "expectations of privacy" that is frightening in its implications:
But the implications of Alito's statement are more far-reaching than the above dismissal indicates. The implication seems to be that an individual's expectations of privacy can in some cases be determined by the nature of the offense being investigated. To be clear, such considerations make perfect sense in determining when a search might be reasonable. But determining when an individual has an expectation of privacy based upon the offense the Government believes it is investigating effectively removes the individual from the equation. That is, such a rationale threatens the very idea of an individual's expectations of privacy as such expectations no longer seem to be determinative.
If Alito's simple statement opens the door for future decisions to follow such rationale, this victory for privacy advocates could well turn into a major set-back.
The headlines addressing the decision that I saw were almost invariably some formulation of "Warrant needed for GPS tracking, high court holds." The Court, however, held no such thing. What the Court did hold, -- per the Opinion delivered by Scalia (joined by Roberts, Kennedy, Thomas and Sotomayor) -- is that the Fourth Amendment protects individuals from intrusions that would be considered trespassory in the common law at the time of the Fourth Amendment's adoption, where those intrusions are made in an attempt to gather information. The expectation of privacy tests, then, are seen to be in addition to that most basic protection, rather than replacing it. In the Jones case, the act of installing the GPS on the vehicle in question with the requisite intent to gain information through monitoring was found to be trespassory, and so the Court found that there was a Fourth Amendment search.
The good news for privacy advocates is that this does strengthen Fourth Amendment protections: a trespassory act to gain information can be a Fourth Amendment search whether or not the expectation of privacy test is met. The news is not, however, as good as reported.
First, vehicles have always had a special place in Fourth Amendment jurisprudence. Vehicular searches so far have required probable cause, but not necessarily a warrant. The Opinion leaves open the question as to whether a warrant would be required in a case whose facts met Jones, and does so explicitly:
So, the Court did not hold that a warrant is required for installation and monitoring of a GPS device on a vehicle, and instead left open the question of whether probable cause might instead be sufficient.
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it.
Second, and more troubling, is that the trespassory protection does not apply to some of the most questionable possible uses of GPS tracking. For example, monitoring GPS devices that are already installed on the vehicle, or similar techniques which the court has already faced: planting a monitoring device on another object before the individual takes possession of that object.
Alito's concurrence will likely be found applicable in cases such as these, where there wasn't a trespassory installation. That concurrence rejected the idea that the installation and monitoring should be viewed as a single act, holding instead that the installation was not a search as such -- presumably because the installation itself does not gather any information. Further, under both Scalia's and Alito's rationale, the actual monitoring of a GPS device is still not a search in and of itself, as the person is using public roadways and thus has no reasonable expectation of privacy. It becomes a "search" only after some protracted, unspecified period of time. In this case, 4 weeks of monitoring. So, the monitoring itself is still not a search, and even when it does constitute a search it's unclear when such a search would need a warrant.
Finally, in explaining the rationale behind finding a Fourth Amendment search in longer-term GPS monitoring, Alito's concurrence opens up an interpretation of "expectations of privacy" that is frightening in its implications:
"....Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable..... But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy."The "most offenses" here is problematic. As Scalia noted in the Opinion,
There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated.
But the implications of Alito's statement are more far-reaching than the above dismissal indicates. The implication seems to be that an individual's expectations of privacy can in some cases be determined by the nature of the offense being investigated. To be clear, such considerations make perfect sense in determining when a search might be reasonable. But determining when an individual has an expectation of privacy based upon the offense the Government believes it is investigating effectively removes the individual from the equation. That is, such a rationale threatens the very idea of an individual's expectations of privacy as such expectations no longer seem to be determinative.
If Alito's simple statement opens the door for future decisions to follow such rationale, this victory for privacy advocates could well turn into a major set-back.
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