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.”