Supreme Court rules search warrants are necessary for GPS tracking | Eastern North Carolina Now

    Publisher's Note: This article originally appeared in the Beaufort Observer.

    The Supreme Court of the United States (SCOTUS) ruled today (1-23-12) that police violated a man's Fourth Amendment right of protection from unreasonable search and seizure when they put a GPS tracking device on his car and monitored his movements for 28 day. They had originally obtained a warrant to track his wife's care for ten days but installed the device on his Jeep after the 10 days without going back to a judicial official to obtain another warrant. It was a 5-4 decision in most respects but significantly the Court was unanimous in holding that installing a GPS device is a search protected by the Fourth Amendment.

    However, because the justices did not agree on reasoning for a single majority opinion it leaves many questions unanswered about whether police have to always get a search warrant and what level of proof they must have. The case was U. S. vs Jones (10-1259).

    The official decision's syllabus (summary) said:

    The Government's attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle's movements, consti¬tutes a search under the Fourth Amendment. Pp. 3-12.

    (a) The Fourth Amendment protects the "right of the people to besecure in their persons, houses, papers, and effects, against unrea¬sonable searches and seizures." Here, the Government's physical in¬trusion on an "effect" for the purpose of obtaining information consti¬tutes a "search." 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. 3-4.

    (b) This conclusion is consistent with this Court's Fourth Amend¬ment 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's concurrence in Katz v. United States, 389

    U. S. 347, which said that the Fourth Amendment protects a person's "reasonable expectation of privacy," id., at 360. Here, the Court need not address the Government's contention that Jones had no "reason¬able expectation of privacy," because Jones's Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, the Court must "assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted." 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--post-Katz cases rejecting Fourth Amendment challenges to "beepers," electronic tracking devices representing an¬other form of electronic monitoring--do 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 Gov¬ernment's position. Pp. 4-12.

    (c) The Government's alternative argument--that if the attach¬ment and use of the device was a search, it was a reasonable one--is forfeited because it was not raised below. P. 12. 615 F. 3d 544, affirmed.

    The courts have long held that searches connected to automobiles and other means of transportation that are used in public have different standards for probable cause than do searches of a residence. The fact that the court, in this case, was not explicit about exact procedures police should follow in the use of electronic surveillance means that it will take a series of later cases to more definitively spell out exactly what standards police should use and what level of expectation of privacy citizens have with regard to such surveillance techniques. The case is a lawyer's dream come true. It will offer innumerable opportunities for attorneys to argue how to apply the case. But what the case does establish is that GPS tracking and probably other such "secret" recording devices whether or not the use of those devices involves physical intrusion by police onto or into the property of a citizen. One can read the case to say the what the court will look at in the future is whether the citizen has a reasonable expectation that the government will not be collecting electronic information on his/her activities without convincing a judicial official that there is probable cause to believe that a crime has been or is being committed.

    But the case raised many more questions than it answers. We shall all have to wait and see how those answers develop over time.