SCOTUS holds in United States v. Jones, 2012 U.S. LEXIS 1063 (U.S. January 23, 2012), that the government’s use of GPS tracking there was a search under the Fourth Amendment. Opinion by Scalia and 9-0 with a concurrence. The Syllabus:
The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment.
Held: The Government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Pp. 3–12.
(a) The Fourth Amendment protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.” Here, the Government’s physical intrusion on an “effect” for the purpose of obtaining information constitutes a “search.” This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted. Pp. 3–4.
(b) This conclusion is consistent with this Court’s Fourth Amendment jurisprudence, which until the latter half of the 20th century was tied to common-law trespass. Later cases, which have deviated from that exclusively property-based approach, have applied the analysis of Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person’s “reasonable expectation of privacy,” id., at 360. Here, the Court need not address the Government’s contention that Jones had no “reasonable expectation of privacy,” because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo v. United States, 533 U. S. 27, 34. Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas it enumerates. The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test. See Alderman v. United States, 394 U. S. 165, 176; Soldal v. Cook County, 506 U. S. 56, 64. United States v. Knotts, 460 U. S. 276, and United States v. Karo, 468 U. S. 705—post-Katz cases rejecting Fourth Amendment challenges to “beepers,” electronic tracking devices representing another form of electronic monitoring—do not foreclose the conclusion that a search occurred here. New York v. Class, 475 U. S. 106, and Oliver v. United States, 466 U. S. 170, also do not support the Government’s position. Pp. 4–12.
(c) The Government’s alternative argument—that if the attachment and use of the device was a search, it was a reasonable one—is forfeited because it was not raised below. P. 12.
615 F. 3d 544, affirmed.
SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed a concurring opinion. ALITO, J., filed an opinion concurring in the judgment, in which GINSBURG, BREYER, and KAGAN, JJ., joined.
This will be the subject of about 1500 news articles, blog entries, and press commentaries. I’ll likely only pick up the important ones by scholars. Mr. Kerr: You’re up.
What is significant to me is that the court still recognizes common law trespass, which I have argued in the past, has never been repudiated, and now is emphasized:
The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its under body) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. Katz did not repudiate that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” Alderman v. United States, 394 U. S. 165, 176 (1969). “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home ….” Id., at 180.
More recently, in Soldal v. Cook County, 506 U. S. 56 (1992), the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, id., at 62, no Fourth Amendment violation occurred because law enforcement had not “invade[d] the [individuals’] privacy,” id., at 60. Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” 506 U. S., at 64.
. . .
We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U. S. 83, 88 (1998) (internal quotation marks omitted). Katz did not narrow the Fourth Amendment’s scope.
More about this later. I have my day job to go back to. Enjoy. The Fourth Amendment maybe is now off life support. Still not in good condition, but at least “not dead yet.”
