On January 23, 2012, the United States Supreme Court issued an opinion in United States v. Jones, No. 10-1259, the GPS tracking device case that I mentioned in a previous post. Justice Scalia delivered the majority opinion, and was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor. Concurring opinions were drafted by Justices Sotomayor and Alito. Interestingly, none of the Justices dissented. The issue, as framed by the Court was,
. . . whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.
The essence of the opinion can be summarized as follows: (1) the Government attached the GPS device to Jones’ car one day after the warrant permitting installation of the device expired; (2) the Government monitored Jones’ vehicle for the next 28 days, and collected more than 2,000 pages of data as to the vehicle’s location over a four-week period; (3) although the District Court held that the Government’s tracking of Jones’ vehicle on public streets did not violate the Fourth Amendment, the United States Supreme Court disagreed.
In holding that the Government’s installation of a GPS device on Jones’ vehicle, and the subsequent use of that device to monitor the vehicle’s movements, constituted a “search” under the Fourth Amendment, the Court first highlighted a key fact: “[t]he Government physically occupied private property for the purpose of obtaining information.” The Court emphasized the Fourth Amendment’s historically close relationship to property rights, and, then, in classic Scalia strict-constructionist-style, observed that it is the Court’s duty to “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Next, the Court distinguished Jones from other cases involving electronic tracking technology, United States v. Knotts, 460 U. S. 276, 281 (1983), and United States v. Karo, 468 U. S. 705 (1984), by noting that neither Knotts nor Karo dealt with the Government’s trespassory installation of a tracking device. The Court further reasoned that the Government’s trespassory installation of the device, and collection of data over the next 28 days, violated the Fourth Amendment because the Government did more than merely visually monitor the location of Jones’ vehicle.
For those of you who love reading Scalia on the attack, you will not be disappointed, for even though Scalia authored the majority opinion, he still took a few good swings at the concurring Justices’ opinions. If you are a criminal defense attorney who does any work in the area of searches and seizures, you really need to take a few minutes to read Scalia’s critique of the concurrences because he compares and contrasts several key search and seizure cases so succinctly. Nevertheless, the concurrences should be read because they also raise the issue of whether a Fourth Amendment violation would have been found in the Jones case had the majority analyzed the case under the Katz “reasonable expectation of privacy” test, as opposed to more traditional property-trespass framework.
What does the Jones opinion mean for the criminal defense lawyer of South Florida? We all know that these days, the Government is increasingly using technology in criminal investigations. (You can read a previous post of mine on the topic here). In that light, I suggest that the Jones opinion is significant because it shows that the Court may be swinging back to the protect the rights of the individual against unlawful Government and law enforcement intrusion.