{"id":6580,"date":"2012-01-28T13:43:51","date_gmt":"2012-01-23T10:37:03","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2012-01-23T10:37:03","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=6580","title":{"rendered":"SCOTUS: GPS use a search under the Fourth Amendment"},"content":{"rendered":"

SCOTUS holds in United States v. Jones<\/a>, 2012 U.S. LEXIS 1063 (U.S. January 23, 2012), that the government\u2019s use of GPS tracking there was a search under the Fourth Amendment. Opinion by Scalia and 9-0 with a concurrence. The Syllabus:<\/p>\n

The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones\u2019s 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\u2019s 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\u2019s 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.<\/p>\n

Held: The Government\u2019s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle\u2019s movements, constitutes a search under the Fourth Amendment. Pp. 3\u201312.<\/p>\n

(a) The Fourth Amendment protects the \u201cright of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.\u201d Here, the Government\u2019s physical intrusion on an \u201ceffect\u201d for the purpose of obtaining information constitutes a \u201csearch.\u201d 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\u20134.<\/p>\n

(b) This conclusion is consistent with this Court\u2019s 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\u2019s concurrence in Katz v. United States, 389 U. S. 347, which said that the Fourth Amendment protects a person\u2019s \u201creasonable expectation of privacy,\u201d id., at 360. Here, the Court need not address the Government\u2019s contention that Jones had no \u201creasonable expectation of privacy,\u201d because Jones\u2019s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must \u201cassur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.\u201d 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\u2014post-Katz cases rejecting Fourth Amendment challenges to \u201cbeepers,\u201d electronic tracking devices representing another form of electronic monitoring\u2014do 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\u2019s position. Pp. 4\u201312.<\/p>\n

(c) The Government\u2019s alternative argument\u2014that if the attachment and use of the device was a search, it was a reasonable one\u2014is forfeited because it was not raised below. P. 12.<\/p>\n

615 F. 3d 544, affirmed.<\/p>\n

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.<\/p><\/blockquote>\n

This will be the subject of about 1500 news articles, blog entries, and press commentaries. I\u2019ll likely only pick up the important ones by scholars. Mr. Kerr: You\u2019re up.<\/p>\n

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:<\/p>\n

The Government contends that the Harlan standard shows that no search occurred here, since Jones had no \u201creasonable expectation of privacy\u201d 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\u2019s contentions, because Jones\u2019s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must \u201cassur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.\u201d 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 (\u201cpersons, houses, papers, and effects\u201d) it enumerates. Katz did not repudiate that understanding. Less than two years later the Court upheld defendants\u2019 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\u2019s contention that there was no Fourth Amendment violation \u201cunless the conversational privacy of the homeowner himself is invaded.\u201d Alderman v. United States, 394 U. S. 165, 176 (1969). \u201c[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 ….\u201d Id., at 180.<\/p>\n

More recently, in Soldal v. Cook County, 506 U. S. 56 (1992), the Court unanimously rejected the argument that although a \u201cseizure\u201d had occurred \u201cin a \u2018technical\u2019 sense\u201d when a trailer home was forcibly removed, id., at 62, no Fourth Amendment violation occurred because law enforcement had not \u201cinvade[d] the [individuals\u2019] privacy,\u201d id., at 60. Katz, the Court explained, established that \u201cproperty rights are not the sole measure of Fourth Amendment violations,\u201d but did not \u201csnuf[f] out the previously recognized protection for property.\u201d 506 U. S., at 64.<\/p>\n

. . .<\/p>\n

We have embodied that preservation of past rights in our very definition of \u201creasonable expectation of privacy\u201d which we have said to be an expectation \u201cthat 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.\u201d Minnesota v. Carter, 525 U. S. 83, 88 (1998) (internal quotation marks omitted). Katz did not narrow the Fourth Amendment\u2019s scope.<\/p><\/blockquote>\n

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 \u201cnot dead yet.\u201d<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

b2evALnk.b2WPAutP Continue reading →<\/span><\/a><\/p>\n","protected":false},"author":3,"featured_media":0,"comment_status":"","ping_status":"pingsdone","sticky":false,"template":"","format":"standard","meta":{"footnotes":""},"categories":[],"tags":[],"class_list":["post-6580","post","type-post","status-publish","format-standard","hentry"],"_links":{"self":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6580","targetHints":{"allow":["GET"]}}],"collection":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts"}],"about":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/users\/3"}],"replies":[{"embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcomments&post=6580"}],"version-history":[{"count":0,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=\/wp\/v2\/posts\/6580\/revisions"}],"wp:attachment":[{"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fmedia&parent=6580"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Fcategories&post=6580"},{"taxonomy":"post_tag","embeddable":true,"href":"http:\/\/fourthamendment.com\/index.php?rest_route=%2Fwp%2Fv2%2Ftags&post=6580"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}