Though the Supreme Court's unanimous decision in United States v. Jones, 565 U.S. ____ (2012) has been extensively covered since it came down on January 23rd, it's worth taking another look at the decision and its practical implications.
The facts of Jones are relatively simple. In 2004 Antoine Jones was the owner of a D.C. nightclub suspected of trafficking cocaine. The FBI and Metro Police joined forces to investigate Jones, using a wiretap, a pen register, and both camera and visual surveillance of the nightclub. On the basis of their information, the Government requested and received a warrant allowing them to place a GPS device on Jones's SUV. They were to attach the device within 10 days, and in D.C. Instead, the GPS was placed on the 11th day, in Maryland. The information from the GPS connected Jones to a stash house where cash and cocaine were found. Eventually, Jones was indicted, tried, and found guilty of conspiracy to distribute. He was sentenced to life. The D.C. Circuit reversed the conviction, and the Supreme Court granted certiorari.
The majority opinion is delivered by Justice Scalia, joined by Roberts, Kennedy, Thomas, and Sotomayor. Meanwhile, Alito's concurrence is joined by three justices - Ginsburg, Breyer, and Kagan. But in Sotomayor issuing her concurring opinion, Jones feels almost as if there were actually two majority opinions.
Scalia framed the issue as whether the placement of a GPS on someone's car, and its use to monitor movements on public streets, is a search and seizure under the Fourth Amendment. This is critical because the Court's opinion has been reported as requiring a warrant to place a GPS on a vehicle. In fact, that issue is not squarely addressed in any of the opinions. The emphasis on "public streets" reflects the District Court's decision to suppress any GPS data obtained from Jones's home garage. Scalia gets in the wayback machine for his analytical starting point. The SUV is deemed an "effect," protected from search and seizure. This was private property that the Government "physically occupied" via the GPS. The Fourth Amendment's close connection to property ("in their persons, houses, papers, and effects") resulted in its jurisprudence being tied to common-law trespass well into the 20th century. Scalia recognizes the more modern approach would be to apply the "reasonable expectation of privacy" test set forth by Harlan in his Katz concurrence, but he sees no reason to go that far (into modernity). The majority believes that the issue is resolved by simply preserving the level of privacy that existed when the Fourth was first adopted.
Scalia finds several precedents to hold that the Katz test did not supplant the Fourth Amendment's relationship to protecting property, but rather added to those original protections. Scalia is quick to note that the concurrence's exclusive reliance on the reasonable-expectation-of-privacy test would eliminate previously existing rights. Aware that Alito's concurrence calls into question the majority's reliance on 18th century law, the majority goes so far as to provide Alito with an 18th century analogue to GPS tracking, that of "a constable's concealing himself in the target's coach in order to track it's movements." None the wiser, Alito notes that this would require "either a gigantic coach, a very tiny constable, or both[.]"
And indeed, in the first sentence of his concurrence Alito highlights that what is at issue is "a 21st-century surveillance technique." But as outlandish as Scalia's approach may seem to some, Alito's presents its own problems. Alito repeatedly frames the question as one of the reasonable expectation of privacy as it relates to long-term monitoring of an individual. And suddenly, it is the length of monitoring that is problematic, not the placement of the GPS. For those in the concurrence Katz did away with the requirement that a trespass occur for a Fourth Amendment violation. For Alito, the majority runs contrary to existing case law. Further, the majority also ignores what Alito believes are the really important issues at stake: (1) long-term tracking that can be achieved without a trespass i.e. use of built-in GPS; (2) incongruous results; (3) the potential that the Fourth Amendment protections vary from state to state based on their property laws; and (4)the inability of trespass law to adequately address surveillance when only electronic signals are at stake, that is, with no physical touching.
Alito, however, seems to hold out hope that GPS tracking goes the way of wiretapping, with Congress enacting a comprehensive statute. The concurrence, more so than the majority, is far more concerned with the effects of new technology, such as smartphones, to result in the constant monitoring that drives its reasoning. For the concurrence, short-term monitoring is palatable because it would seem that this is in accordance with modern expectations of reasonable privacy. And indeed, this seems appropriate given that any of us could be tailed for a few hours, or even days, but none of us could be under surveillance as constantly, and in as detailed fashion, as a GPS permits over a long period of time. What is long-term as opposed to short-term? No one really knows, but Alito is confident it came before the four-week mark.
In the end, it is Sotomayor that issues the most interesting opinion. Several commentators have noted that this will likely prove to be one of her most important opinions. It is Sotomayor that joins Scalia to reach five justices, but is also Sotomayor's broad interpretation of privacy that makes Jones read as if it were two majority decisions. In short, Sotomayor agrees that a trespass occurred, which violated the Fourth Amendment. She is also ill-at-ease with the concurrence's decision to ignore the physical intrusion, and thus erode the Fourth's protections. Yet Sotomayor does not seem completely sold that Scalia's posture doesn't also serve to erode the Fourth by tying its protections so firmly to property law. She agrees with Alito that physical intrusion is increasingly unnecessary for the type of monitoring at issue. Unlike Alito, however, Sotomayor would not limit the reasonable-expectation-of-privacy test to long-term monitoring. She notes that the wealth of information a GPS can provide law enforcement may result in even short-term monitoring being considered a search. Sotomayor states that it may even be necessary to reconsider the premise that there is no reasonable expectation of privacy in information voluntarily disclosed to third parties, noting that in the digital age a tremendous amount of such information is disclosed in this way. In effect, Sotomayor joined Scalia because given a physical intrusion she saw no reason to proceed to the Katz analysis. That said, were she to apply that analysis in a future case, she would likely take a broader perspective on privacy interests in the digital age.
The Court did punt on whether a warrant is required for this type of search, which is a major issue both practically and legally, for purposes of the exclusionary rule, among other things (coincidentally, also an issue in flux for this Court). Further, the fractured and competing opinions call to question whether Jones can be easily circumvented given slightly changed facts. While these may be disappointing facets of the case, Jones will certainly be a critical case in any search where property interests are sufficiently involved. Jones also strongly indicates that long-term surveillance would probably require a warrant. There are serious doubts, however, as to the need for a warrant for short-term monitoring. Finally, Jones and the numerous questions it raises may result in what Alito explicitly called for in the concurrence-for the legislature to determine its constituents' reasonable expectation of privacy via statute. Interestingly, reading Jones there seems to be a sense that some Justices have their doubts about Scalia's assurances that the Fourth Amendment will always be protected by both trespass law and the Katz test. Indeed, it is not outlandish to think that Scalia would be content to see property rights as the driving force behind the Fourth Amendment's protections.
While the particularities of the opinion(s) diminish the initial impression a 9-0 vote may convey, Jones will likely be a critical Fourth Amendment case moving forward. Even should this not be the case, it is Sotomayor's separate concurrence that is most satisfying. It's broad pro-privacy stance is the only one that captures the visceral concerns of most non-attorneys when a case like Jones is recounted to them. It is not merely that the Government can place an object on your personal property and use it to gather data (Scalia), nor is it merely that a person does not reasonably expect to be closely monitored for one or two weeks (Alito). Rather it is both considerations and more that are troubling to many people. It is the trespass. And our expectation of privacy. And the common knowledge of the detailed type of information available via GPS. And the number of GPS units any of us may carry on our persons or in our cars at any given time. It's all of that and more. So perhaps Alito is right, that a statute is in order. But until then, Sotomayor, rightly or wrongly, was the only one to grasp all of the complex issues that the Fourth Amendment will face in an increasingly digitized and interconnected world.
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