January 23, 2012

When "the Government trespassorily inserted the information-gathering device" on a car, it was a search within the meaning of the 4th Amendment.

Says the Supreme Court, this morning, in United States v. Jones. Scalia writes the privacy-protecting opinion, joined by Roberts, Kennedy, Thomas, and Sotomayor.
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information....

The text of the Fourth Amendment reflects its close connection to property...

Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century....

Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy”....
Despite the deviation — which worked to protect people using public phones and so forth — the Court rejects the Government's argument that Jones had no "reasonable expectation of privacy" with respect to the underside of his Jeep and where the Jeep was when it was driving about on the public roads. The Katz test was about extending the scope of an individual's privacy, not cutting back on traditional property-based protections.

There's no dissent, but Alito writes a concurring opinion which is joined by Ginsburg, Breyer, and Kagan. Alito characterizes the majority of using "18th-century tort law" to interpret the 4th Amendment and says the question should be analyzed in terms of reasonable expectations of privacy.

48 comments:

traditionalguy said...

So what about drones and audio capturing electronics aimed at Jeeps?

This will frustrate the plot lines of many crime investigation TV shows. I plead the 1st Amendment.

Jay said...

the Court rejects the Government's argument that Jones had no "reasonable expectation of privacy" with respect to the underside of his Jeep

But Obama and his supporters are like so in favor of privacy!

TreeJoe said...

I liked Glenn Reynolds' point(paraphrasing), "If this is legal and permissible, then it is also legal for a citizen to attach a legal tracking device to a police officer's, congressman's, or judge's car."

Considering we could all just strap an i-Phone in a plastic case to the underside of a car, then track the GPS signal on it, this is pretty readily available to anyone. The implications would be mind-boggling.

Charlie Martin said...

Scalia writes the privacy-protecting opinion, joined by Roberts, Kennedy, Thomas, and Sotomayor.

It's that damned conservative block again.

(The Captcha word is "lawkin". That's just too easy.)

PatHMV said...

I am concerned by Alito's concurrence, and the harshness with which he attacks, it seems to me, the fundamental principles of originalism. He makes fun, it seems, of the majority's reliance of 18th century law and concepts to analyze what he claims is a "21st century" problem. That does not bode well for the future of originalism on this Court, sadly.

MayBee said...

I'm so happy.

When I first heard about this case on NPR, it was a former Obama justice person discussing it- and defending doing it. I found it incredibly frightening that the government was arguing that if you and your car are out in public, they have the right to put a device on your car and track it.

The NPR host said, "If this is legal, what would stop the government from building tracking devices into our license plates?"

The Obama guy's response was a)the government wouldn't do that. But if they did b)the people could vote them out of office.

AJ Lynch said...

So it was a unanimous decision in a way? That is good.

edutcher said...

Well, somebody on the Court actually read the 4th Amendment.

There's hope yet.

PatHMV said...

I am concerned by Alito's concurrence

The knock on Alito (and Roberts), as they were both appointed by Dubya, is that they're Big Government Conservatives, and won't knock down anything the Feds have in place.

YMMV.

bagoh20 said...

"The Government introduced at trial the same GPS derived locational data admitted in the first trial, which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine,and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment."

Somebody loves the Supremes today.

ricpic said...

Trespassorily the twisted tongue trips past truth into tergiversation.

TWM said...

Back to following criminals again. Which is cool cause surveillance is fun. Most of the time, anyway.

EDH said...

...the Court rejects the Government's argument that Jones had no "reasonable expectation of privacy" with respect to the underside of his Jeep and where the Jeep was when it was driving about on the public roads.

"Cape Fear... Next Exit"

"Counselor!"

"Come out, come out, where ever you are!"

Original Mike said...

Good.

DADvocate said...

Good for Sotomayor. She may not end up being too bad after all.

Kirk Parker said...

"But Obama and his supporters are like so in favor of privacy! "

Sure, but there are so many people crowded under the vehicle, you can't possibly have any reasonable expectation of privacy there!

"Sotomayor... may not end up being too bad after all."

Maybe. Kudos to her for being on the right side of this decision; do you seriously think she'll be the same on gun-rights cases>

John Burgess said...

There seems to be some confusion in the comments about what this decision said.

In this case, the putting of a GPS tracker occurred after a valid search warrant had expired (by one day) and the putting took place in another location than specified in the warrant. Thus, the warrant was void and a warrantless search occurred.

Had the GPS been placed within the warrant's period of effect and in the proper location, the evidence would have been admissible.

The lesson here isn't that the gov't cannot track you with GPS, it's that it needs a valid warrant to do so. The investigators screwed their pooch here by not acting correctly as to time and place.

MayBee said...


The lesson here isn't that the gov't cannot track you with GPS, it's that it needs a valid warrant to do so.


No, I think people here understand that.

The problem is the government arguing that they didn't need a search warrant because there was no expectation of privacy.
Once you don't need a search warrant to put a tracking device on someone's private property because they are taking it on a public road, how many ways can that argument be used?

Do you need a warrant to listen to someone's phone calls, because there's no expectation of privacy when the lines and airwaves travel through public areas?

al said...

"Sotomayor... may not end up being too bad after all."
 
Maybe. Kudos to her for being on the right side of this decision; do you seriously think she'll be the same on gun-rights cases>


Sotomayor dissented in both Heller and McDonald. She is no friend of gun owners.

Lyssa said...

MayBee said: I'm so happy.

I'm glad that the decision came out that way, and even gladder that it was basically unanamous, but the fact that this was even a question still scares the shit out of me.

ark said...

I'm surprised. I would have expected the conclusion to be that there is no right to drive, and therefore that the government can condition the privilege of driving on any surrender of rights that it chooses.

In fact, it has long surprised me that (to my knowledge) no state government has tried to insist that in order to be allowed to drive, you have to give the police the right to search your house at will.

DADvocate said...

Sotomayor dissented in both Heller and McDonald. She is no friend of gun owners.

True. But, at least she's not a complete tool.

Doc Merlin said...

@ark
Thats because there is a right to drive. Unlike all the propaganda signs at the DMV say, legally driving is a right.

TWM said...

"The problem is the government arguing that they didn't need a search warrant because there was no expectation of privacy.
Once you don't need a search warrant to put a tracking device on someone's private property because they are taking it on a public road, how many ways can that argument be used?"

So does this opinion allow the police to place a tracking device on a vehicle if it is parked in a public place?

TWM said...

"Unlike all the propaganda signs at the DMV say, legally driving is a right."

Key word being legally.

davis,br said...

As "only Jeep" owners/drivers (an aging Cherokee, and a slighly less older Wrangler), my wife and I wish to thank the Court for making the right decision.

...one which correctly, inarguably, and finally establishes the superiority of the vehicle of choice for true Americans.

Jeep: approved by the Supreme Court.

...I think y'all are reading too much into this as merely a 4th issue, and not enough as an endorsement. Of course.

mrkwong said...

"We've got a warrant, don't we?"

"Well, it expired yesterday."

"Anyone got the judge's cell?"

"Uh..."

"Well, do you think we really NEED a warrant?"

"Dunno. Maybe he'll just plead guilty and we won't have to worry about it."

MayBee said...


So does this opinion allow the police to place a tracking device on a vehicle if it is parked in a public place?


No. The vehicle is private property. The idea that it was in public and therefore the police could place a tracking device on it was the government's defense, and was rejected.

Crunchy Frog said...

I would have been shocked if it was anything other than 9-0. I was hoping for a more comprehensive ruling - one that would have also required a warrant to have the OnStar system in your Government Motors vehicle turned on surreptitiously.

Guess that's going to be the next one down the line.

MayBee said...


So does this opinion allow the police to place a tracking device on a vehicle if it is parked in a public place?


It does allow the police to get a warrant and place a tracking device on a vehicle.

caseym54 said...

So, the majority says putting an orange dot on a car is a trespass and therefore a search and the GPS issue doesn't need to be reached.

Alito et al say that no, the placement of the GPS device is not a search (old trespass rule no longer valid), but the operation of GPS over [some] considerable period is a search.

Sotomayor signs onto majority and also says that Alito is right about the GPS part.

Unanimous in result, 5-4 or maybe 4-4-1 in reasoning. What a muddle. If a cop puts a old-style beeper on a car he has to get a warrant to install it, but not to use it. And maybe not even GPS if only for a little bit.

Kirk Parker said...

"In this case, the putting of a GPS tracker occurred after a valid search warrant had expired (by one day)"

You have got to be kidding me! Somehow I missed that little nuance in my reading about this case. But this is important, as it really does answer my big-picture question about the situation: How hard is it to just get a warrant in the first place? And the answer is, so totally not hard at all that they actually did get one for the guy in question!

Unknown said...

"The Obama guy's response was a)the government wouldn't do that. But if they did b)the people could vote them out of office."

In the meantime you'd still have the law on the books and the tracking device in your license plate.

Welkom to Amerika Mr. Wells.

LBJay said...

So does this opinion allow the police to place a tracking device on a vehicle if it is parked in a public place?

No. The vehicle is private property.


Yes if they have a valid warrant and it is legally executed.

Salamandyr said...

Tangential to the case, but is anyone else disgusted that the defendant, whose crime was nothing more than conspiracy to deal drugs, was sentenced to life in prison?

Tyrone Slothrop said...

I want the government to respect my right to privacy as much as anyone, but, frankly, this ain't it. If a squad car follows me in my Jeep, or an unmarked car, or a helicopter, or an SR-71, or a spy satellite, has my right to privacy been infringed? How is that functionally different from having a tracking device on my car?

Revenant said...

I'm glad to see that none of the justices thought the government was allowed to do this.

MayBee said...

I want the government to respect my right to privacy as much as anyone, but, frankly, this ain't it.

What if they put a tap on your iphone without a warrant, making the argument that if you are talking in public they would be able eavesdrop on your conversation?
The principle is the same. Your car is still being monitored even if you aren't on a public street. You conversation would be, too.


As for the specific case about driving- isn't it the case that if you are caught in a chase, the warrant to search your car is implied, but if they come to your home three hours later asking to search your car, you can insist on a warrant?
Doesn't that imply we expect the police to have to exert a certain level of effort when monitoring someone who is, after all, considered innocent?

Charlie Martin said...

So does this opinion allow the police to place a tracking device on a vehicle if it is parked in a public place?

If the vehicle never goes out on the road, why would you need a tracking device?

Scott M said...

If the vehicle never goes out on the road, why would you need a tracking device?

Because they have to make sure the boot covers your entire face.

JackOfVA said...

Suppose instead, tracking information is obtained by a series of closed circuit TV cameras and license plate reading software that captures the location of hundreds of thousands of motorists a day in a city and saves the location, license plate information, time of day, direction of travel, etc. into a database that is preserved indefinitely.

And, perhaps it's combined with facial recognition software to record where you walk, time of day, etc. The link between face and who you can can be via drivers license database. This information is also saved in a database, indefinitely.

This is all technologically feasible, although facial recognition isn't as good as license plate recognition.

Presumably, there's no expectation of privacy in either of these cases because you are on public roads or sidewalks.

Yet, technology creates the possibility of such intrusive surveillance that the East German Stasi could have only dreamed about.

I assume this is at the heart of the property versus expectation of privacy dichotomy in the decision. However, a hard decision would have to be made that a aggregation of individual actions results in a surveillance state incompatible with the traditional liberties encompassed in the Constitution.

Dr. Kenneth Noisewater said...

Trespassorily the twisted tongue trips past truth into tergiversation.

I dunno, it's a perfectly cromulent word..

Tyrone Slothrop said...

MayBee said...


What if they put a tap on your iphone without a warrant, making the argument that if you are talking in public they would be able eavesdrop on your conversation?


Not even close. I have an expectation that my conversations will be private. My car is not invisible, employs no radar-evading stealth technology, and is real and apparent to everyone. I have no expectation that the location of my vehicle is a strictly private matter. What is inside my vehicle is a different matter, and I have Fourth Amendment protection for that.

Rusty said...

So does this opinion allow the police to place a tracking device on a vehicle if it is parked in a public place?


Why would it. The whole vehicle including the outside is your private property. Nobody has the right to touch it without your permission or a warrant. Just because it is in a public place does not mean it ceases to be your private property.

Ignorance is Bliss said...

So if they had placed the tracking device on the car the day before, when the warrant was valid, could they continue to track it after the warrant expired?

Jose_K said...

The problem is the government arguing that they didn't need a search warrant .. If so why they did ask for one in the first instance?
the stoppel doctrine does anot apply? Once yo accepted that you need a warrant,you cant argu that you don need one.

MayBee said...

I have an expectation that my conversations will be private. My car is not invisible, employs no radar-evading stealth technology, and is real and apparent to everyone.

If you're in public, you should have no expectation that your conversation will be private.

If your phone conversation takes place inside your home or inside a friend's home, you can expect your phone conversation to remain private. But if your car has a tracking device, the police will know if your car is in your garage, or in your friends' garage.

How about this: What if they could attach a camera to your briefcase as you walk to work?

Wally Kalbacken said...

He drove a Jeep! I knew it!

Timothy said...

I don't think the Court "rejected" the argument that no reasonable expectation of privacy existed as much as brushed the argument aside, making no such determination.

The Court didn't apply the Katz test at all, applying instead what looked like the Olmstead test (what Alito called 18th century tort law).

Also, from the Court's reasoning, it seems the government may still be able to "track" you using a GPS, it just can't physically place the device on the car (that would be a "search"). It just has to find another way of getting the device on or in the car.