Today, in United States v. Jones, the Supreme Court issued an opinion finding that the installation of GPS device on an individual’s vehicle and law enforcement’s subsequent use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. In making this finding, the Court stressed that the Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures.” The Court found that there was no question that a vehicle constitutes “an effect” as that term is used in the Amendment and that because law enforcement physically occupied private property for the purpose of obtaining information, this intrusion constituted a “search.” However, the Court declined to address whether that search was unreasonable because the Government had failed to raise it below and it was not properly before the Court. Accordingly, it remains unclear when a warrant would be required in the future to conduct a similar search.
The majority opinion emphasizes that the Fourth Amendment’s original jurisprudence is tied to common law trespass and that while more recent cases have focused on the “reasonable expectation of privacy” standard put forward in Katz v. United States, 389 U.S. 347, 351 (1967), that that the “trespass” standard developed in the late 18th century is still applicable in parallel with the Katz test, because the Fourth Amendment guarantees “at a minimum the degree of protection it afforded when it was adopted.” Notably, the court differentiated the Fourth Amendment beeper cases, stating that in those cases the tracking device was installed with the consent of the previous owner prior to it coming into the possession of the individual. The Court opined that where the Government has not had any physical contact with an “effect” after it comes into the ownership of the individual, and where the individual accepts the item with the tracking device attached, a search has not occurred, because there is no physical intrusion. Further, the Court noted that where a case does not involve a physical intrusion, but merely electronic signals, the applicable test is the Katz test.
This opinion, written by Justice Antonin Scalia and reflecting the narrowest holding, was affirmed by a closely divided court. Although all nine justices agreed that the placement of the GPS unit on the vehicle constituted a search under the Fourth Amendment, they differed as to the reasoning. Scalia’s narrow holding, which focused on the physical intrusion, received five votes. The concurring opinion, written by Justice Alito was supported by the four remaining justices. In contrast to Scalia’s opinion, Justice Alito’s concurrence argues for the sole application of the Katz standard and challenged Scalia’s opinion as “unwise” for relying on antiquated trespass law, as there is no 18th century situation that could be considered analogous to the use of this type of technology. Alito’s opinion also indicated that “longer term GPS monitoring” for “most offenses” would constitute an invasion of privacy, a standard which Scalia criticizes as being unsupported by precedent and “lead[ing] us needlessly into additional thorny problems.” Yet, Justice Sotomayor, in her separate concurring opinion, agreed with Justice Alito that the use of GPS technology over a prolonged period of time could impinge upon an individual’s Fourth Amendment rights.
At the end of the day, while the narrow majority opinion appears to have skirted the imperative question of when purely electronic surveillance of location data impinges upon the reasonable expectation of privacy– through the concurring opinions, five justices have offered some guidance. Specifically, they have provided that at minimum, depending on the length of time and offense asserted, GPS monitoring in investigations could impinge upon expectations of privacy. However, it remains unclear exactly where the line between constitutional and unconstitutional GPS surveillance falls.
