Category Archives: 4th Amendment

Jail Strip Searches

In Florence v. County of Burlington (2012) the US Supreme Court ruled (by a vote of 5-4) that jailers have a general right to strip search all arrestees, even those arrested for minor offenses such as vehicle code violations. Strip searches are valid under the Fourth Amendment even if jailers have no reason to believe that an arrestee has a weapon or illegal contraband like drugs secreted somewhere in a body cavity.

While the ruling was a close one, the decision probably reflects as much as anything else the majority’s unwillingness to second guess jailers’ decisions as to when a strip search may be warranted. For one thing, jail personnel might not even know why a person has been brought to jail. Thus, a decision to strip search may be more a product of conditions in the jail than a suspect’s dangerousness.

Moreover, Justice Kennedy’s opinion noted that “about 13 million people are admitted to jails each year,” making it sound like arrestees have gotten into college. Given the goings and comings of the jail population, probably only a small percentage will be strip searched anyway.

Finally, the opinion leaves plenty of room for arrestees to challenge the legality of individual searches. For example, a strip search may be invalid because of the particularly humiliating or dangerous manner in which it was conducted.

GPS Devices and the 4th Amendment

In United States v. Jones (2012), the U.S. Supreme Court decided that the government engaged in an illegal search when police officers tracked a suspected drug dealer’s movements by attaching a GPS (Global Positioning Satellite) device to the suspect’s car. It was a unanimous decision, so the outcome of the case is less interesting than watching the Justices try to figure out how best to apply 18th century conceptions of privacy in an electronic era.

The reason that Jones was a simple case was that police officers physically attached the GPS device to Jones’ car. That physical intrusion onto the suspect’s property would have been familiar to the 18th century drafters of the 4th Amendment. But what if police officers had tracked Jones’ car through a factory-installed GPS system? What if police officers had tracked Jones’ movements by monitoring the signals from his mobile smartphone?

At present, the Court has little more to go on to decide such issues than the “reasonable expectation of privacy” test it adopted in the case of Katz v. United States, decided in 1967. But what is a reasonable expectation of privacy in an era when computer users give up privacy every time they open a website? (Don’t worry– if you’re reading this, I don’t know who you are.) The Court will inevitably have to struggle with questions like this one in future 4th Amendment cases.

Supreme Court: Cops Need a Warrant for GPS Tracking

The Supreme Court ruled today that a law enforcement agency’s attachment of a GlobalPositioning-System (GPS) device to a vehicle, and the use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. The decision offered the Court a chance to define “search and seizure” rights in an era in which technology is tirelessly extending the reach of the long arm of the law. But while all nine Justices agreed on the decision — use of the GPS device constituted a search under the Fourth Amendment so that a warrant is required — they didn’t take the same route to get there, and the somewhat narrow ruling may not cover much precentent-setting ground in the constitutional law canon.

The underlying facts of the case (U.S. v. Jones) show that a joint narcotics task force of FBI and D.C. Metro Police installed a Global-Positioning-System (GPS) tracking device on a suspect’s vehicle, and used the device to track the vehicle’s movements for 28 days, in connection with a drug trafficking investigation.

Justice Antonin Scalia authored the Court’s majority opinion in U.S. v. Jones, in which Chief Justice Roberts and Justices Thomas, Kennedy, and Sotomayor joined. In ruling that use of the GPS device to monitor the vehicle’s movements on public streets amounted to a “search” under the Fourth Amendment, Scalia’s opinion focused on the physical act of intrusion. Scalia compared the attachment of the device with the age-old legal wrong of common law trespass: “The Government physically occupied private property for the purpose of obtaining information…By attaching the device to the Jeep, officers encroached on a protected area.”

Justic Sotomayor wrote her own concurring opinion to emphasize that “the Fourth Amendment is not concerned only with trespassory intrusions on property,” and to suggest that a more appropriate focal point for analysis in cases involving the use of potentially intrusive technology might be on the “existence of a reasonable societal expectation of privacy in the sum of one’s public movements” under the circumstances. But Sotomayor then points out that resolution of such larger issues is not necessary in the instant case because “the Government’s physical intrusion on Jones’ Jeep supplies a narrower basis for decision.” The glaring problem with Scalia’s decision as authored, according to Sotomayor, is this: “In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance.”

Justice Samuel Alito also authors his own concurring opinion (in which Justices Ginsburg, Breyer, and Kagan join) to also suggest that the majority may have erred in focusing on the physical trespass element of the search (the placement of the GPS device on the vehicle) rather than the bigger (unanswered) question: “I would analyze the question presented in this case by asking whether [the suspect]’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”

Read U.S. v. Jones — the majority decision, concurring opinions, and all — right here.