Supreme Court Decides - But Doesn't Decide - Issue of GPS Tracking

January 27, 2012
By Brassel, Alexander & Rice, LLC on January 27, 2012 11:49 AM |

In a case profiled here in October, the United States Supreme Court issued a ruling this week reversing the conviction of Antoine Jones. The case held the potential to drastically alter the Court's Fourth Amendment jurisprudence, but due to the very narrow grounds the Court based its ruling on, many of the issues related to warrantless electronic monitoring of suspects has been left to future cases.

gps.jpgWhile the Fourth Amendment may seem technical or scholastic to some, the meaning of the right to be secure in one's person and possessions has far-reaching effects in most criminal cases. The charges the State brings against a defendant, whether murder charges or drug possession, almost always implicate the Fourth Amendment. Our experienced Annapolis drug possession attorneys have the knowledge and understanding of the Fourth Amendment necessary to protect our clients' rights.

The Supreme Court held that the case was a "classic trespassory search" within the meaning originally provided by the framers of the Fourth Amendment, because of the nature of the police's action: "[t]he Government physically occupied private property for the purpose of obtaining information.". The earliest case law on the Fourth Amendment only addressed violations of privacy that involved physical trespass. For example, in Olmstead v. United States, decided in 1928, the Court held that there was no Fourth Amendment violation when a wiretap was attached to telephone wires on public streets; without a physical trespass to an individual's property or person, there was no search.

The Court altered its analysis of what a Fourth Amendment search was in Katz v. United States, a 1967 case in which a listening device was placed on the outside of a public telephone booth. With that case, the Court expanded the protections of the Fourth Amendment to include more than situations where there was a physical trespass to a person or his or her property. Under Katz, a Fourth Amendment violation occurred when the police violated an individual's "reasonable expectation of privacy." The Katz decision did not, however, get rid of the restrictions on traditional "trespassory" searches.

Thus, applied to this case, the Court held that the police's action in placing the GPS tracking device on Jones' vehicle constituted a Fourth Amendment search because there was a physical trespass to his property. Because the police did not have a valid warrant at the time they placed the tracking device, they violated the Fourth Amendment, and the Court reversed Jones' conviction.

What is perhaps most interesting to this decision is what it did not decide. Justice Scalia, along with Justices Roberts, Thomas, and Kennedy joined, provided what is considered to be the majority opinion, because Justice Sotomayor concurred with the opinion. Justice Sotomayor suggested that she wished the majority had expanded its opinion, pointing out that "[i]n cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance."

Four other Justices - Alito, Ginsburg, Breyer, and Kagan (an unusual grouping) concurred in the judgment only, meaning that while they agreed that the conviction should be reversed, they did not agree with Justice Scalia's reasoning. Justice Alito argued that the older, trespassory approach was "repudiated" with the Katz decision. Justice Alito pointed out the limits of the approach as applied to future cases. He indicated, that while short-term monitoring of an individual (by use of visual observation or with a monitoring device) might not exceed society's expectations for privacy, long-term monitoring very well might.

Thus, under this ruling, situations involving merely the monitoring of transmission of electronic signals without trespass would remain subject to Katz "reasonable expectation of privacy" analysis. It seems evident that, although the Court did not expand its ruling to determine that such a situation would violate the Fourth Amendment, Justicies Sotomayor, Alito, Ginsburg, Breyer, and Kagan all would support a finding that the extended monitoring of electronic signals from a GPS device - even without a physical trespass, such as using a car's OnStar system - would violate the Fourth Amendment. In fact, Justice Sotomayor specifically agreed with the statement in Justice Alito's opinion that "longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." What is unclear, however, is exactly what that means. What is "longer term"? What does "most offenses" mean? Further, as Justice Scalia points out, it is possible that "visual observation is constitutionally permissible," even if it continues for long periods of time, and is not supported by a warrant, while obtaining the same information by use of a GPS device would be unconstitutional.

A strong argument can be made that the Supreme Court did a disservice to everyone involved in the criminal justice system, from the police officers, to the individuals accused of crimes, to the attorneys and the judges. While it is common Court practice to decide the case on the narrowest possible terms, the Court seemed to stretch that reasoning here. Rather than put the case in the context of current search-and-seizure law, the Court stretched back to the application of rarely-used cases from before the 1960s, when Fourth Amendment jurisprudence was remarkably different than it is today. While it is unlikely that this decision suggests a return to pre-Civil Rights era jurisprudence (at least to the point of displacing more recent decisions), if the Court had applied more current laws to the current technology involved in the case, everyone in the criminal justice system would have a better idea of what is permitted, and what is not. Our Maryland criminal defense lawyers are experienced at making the arguments that protect our clients' rights. If you are arrested, contact our firm today.