In U.S. v. Maynard, 615 F.32d 544 (D.C.Cir. Aug. 6, 2010) (P&J, 08/09/10), the D.C. Circuit considered the joint appeals of Lawrence Maynard and Antoine Jones who were convicted of a conspiracy to possess and distribute substantial amounts of cocaine and cocaine base. Although both defendants raised a number of issues in common, Jones alone argued that his conviction should be overturned because the police violated the Fourth Amendment prohibition of “unreasonable searches” by tracking his movements 24 hours a day for four weeks with a GPS device they had installed on his Jeep without a valid warrant. The police then used the evidence they gathered from that device to convict Jones.
The D.C. Circuit agreed with Jones that attaching a GPS monitoring device to his car and using that device for such an extended period of time constituted an unreasonable search under the Fourth Amendment, particularly in light of the sheer amount of information that had been collected. Thus, because at least some of the evidence used to convict him derived from the GPS device, the Court concluded that Jones’ conviction had to be reversed.
That holding, the first ruling by a Federal Circuit Court of Appeals to suggest that a warrant may be required to install and use a GPS tracking device, was a significant defeat for the Government and sent the Department of Justice into a state of apoplexy. However, buoyed by a pattern of steady encroachments into Fourth Amendment rights by the current Supreme Court, the DOJ quickly and confidently sought review from the Supreme Court.
In a ruling that surprised many, the Supreme Court unanimously agreed that attaching a GPS device to a vehicle and then using that device to monitor the vehicle’s movements constitutes a search within the meaning of the Fourth Amendment. The Court also affirmed, albeit on different grounds, the D.C. Circuit’s holding in Maynard that Jones conviction had to be reversed because it was based, at least in part, on the fruits of an unreasonable search.
Although all nine Justices agreed that Jones’ conviction should be reversed, they were deeply divided on how to reach that conclusion; and, in many ways, the majority opinion by Justice Scalia and the two concurring opinions by Justices Alito and Sotomayor were a strange melding of a lot of very disjointed and incompatible Fourth Amendment principles.
One thing that is clear is that the Court did not rule, as much of the press reported, that a warrant is required before law enforcement officials may attach a GPS device to a car. (Compare, for example, “Supreme Court rules warrant needed for GPS tracking,” by Joan Biskupic, as published in USA TODAY, on January 23, 2012 with “What Jones Does Not Hold,” by Prof. Orin Kerr, as posted on The Volokh Conspiracy on January 23, 2012 and “Jones confounds the press,” by Tom Goldstein, as posted on SCOTUSblog on January 25, 2012).
Justice Scalia wrote the majority opinion that was joined by Justices Roberts, Kennedy, Thomas and (surprisingly) Sotomayor. The main thrust of that opinion was that the Government’s installation of the GPS tracking device on Jones’ car was constituted the kind of “trespassing” that would have been a “search” when the Fourth Amendment was first adopted in the eighteenth century. Thus, Justice Scalia wrote: “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
Justice Alito wrote a lengthy concurring opinion that was joined by Justices Ginsburg, Breyer and Kagan. While he agreed that Jones’ conviction should be reversed, Justice Alito rejected the majority’s use of an antiquated “trespass” approach to achieve that result. He wrote: “[I]t is almost impossible to think of late- 18th-century situations that are analogous to what took place in this case.” He said that the majority’s approach was “unwise,” it “strains the language of the Fourth Amendment,” and was “highly artificial.”
In his view, rather than using the antiquated property-rights test of trespass, he argued that the case should be judged on the basis of the more contemporary “reasonable expectation of privacy.” Thus, he wrote: “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” He then continued: “Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”
Justice Sotomayor also wrote a separate concurring opinion (in which no other members of the Court joined) in which she sympathized with the views of both Justice Scalia and Justice Alito but also voiced the broadest approach to privacy in today’s technological era. She wrote: “It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
In sum, all three opinions left many major issues about GPS searches unanswered; and their incompatibility created a great deal of confusion about the scope of the Court’s ruling and its ultimate impact on the rapidly changing surveillance techniques of the 21st century. Clearly, the Court has only begun to grapple with the many conflicts between modern day technology and a citizen’s right to privacy.