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FOURTH AMENDMENT: PHYSICALLY INVADING PERSONAL PROPERTY TO GATHER INFO, MEANS A SEARCH OCCURS

In U.S. v. Jones, Docket No. 10-1259, the Supreme Court of the United States, in a vote of 9 to 0, held that the installation of a global positioning system (GPS) tracking device on a suspect’s vehicle, without a warrant, constituted an unlawful search under the Fourth Amendment of the United States Constitution. The significance of the decision in Jones lies in the narrow basis for the holding.  In essence, the majority’s holding reflects an irreducible constitutional minimum: “when the Government physically invades personal property to gather information, a search occurs.”  The Majority’s trespassory test does not offer guidance in a world where physical intrusion is now unnecessary to many forms of surveillance.

Antoine Jones, an owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking cocaine. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the nightclub, and wiretap covering Jones’ cellular phone.  Based on this information gathered from these sources, the Government applied for and was granted a search warrant authorizing the installation of a GPS device in the District of Columbia within 10 days.  On the 11th day, and not in the District of Columbia, agents installed a GPS tracking device on the undercarriage of the Jeep while it was in a public parking lot.  Over the next 28 days, the Government used the device to track the vehicle’s movements and the device relayed more than 2,000 pages of data.  Eventually, the Government obtained an indictment and ultimately, after two trials, Jones was convicted and sentenced to life in prison. On Appeal, the conviction was overturned.

In affirming the Court of Appeal’s decision, the Majority did not apply the Katz “reasonable expectation of privacy test,” rather the Majority chose to decide the case on the common-law trespassory test.  The Majority began by stating that the Fourth Amendment provides in relevant part that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Majority noted that it is “beyond dispute that a vehicle is an effect as that term is used in the Amendment.”  The Majority reasoned that the Government’s intrusion on an effect/vehicle for the purposes of obtaining information constituted a search and would have been considered a search within the meaning of the Amendment at the time it was adopted.

The Majority’s holding does not offer guidance in a world where physical intrusion is now unnecessary to many forms of surveillance.  It is inevitable that the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory or owner-installed vehicle tracking devices or GPS-enabled smartphones.  The question left unanswered by the Majority opinion, is, will GPS monitoring—short term or long term— impinge on someone’s expectations of privacy.  Especially, given that traditional surveillance of the vehicle—using numerous cars and personnel— could obtain the same information and data gathered by the GPS device.

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