Thoughts, essays, and writings on Liberty. Written by the heirs of Patrick Henry.

“Anyone who clings to the historically untrue -- and thoroughly immoral -- doctrine that 'violence never solves anything' I would advise to conjure up the ghosts of Napoleon Bonaparte and of the Duke of Wellington and let them debate it. The ghost of Hitler could referee, and the jury might well be the Dodo, the Great Auk, and the Passenger Pigeon. Violence, naked force, has settled more issues in history than has any other factor, and the contrary opinion is wishful thinking at its worst. Breeds that forget this basic truth have always paid for it with their lives and freedoms”     Robert A. Heinlein,    Starship Troopers

January 23, 2012

SCOTUS: Police Placing GPS Tracking Device on a Vehicle Without Warrant Violates the Fourth Amendment [or Does it?]

by Stephen Littau

How about some good news on the civil liberties front to kick off the week for a change? Robert Barnes writing for The Washington Post reports that SCOTUS ruled 9-0 in United States v. Jones stating that the police placing a GPS tracking device on a person’s vehicle and tracking said vehicle over days, weeks, or months without a warrant violates the Fourth Amendment’s guarantee against unreasonable searches.

The Supreme Court ruled unanimously Monday that police must obtain a search warrant before using a GPS device to track criminal suspects. But the justices left for another day larger questions about how technology has altered a person’s expectation of privacy.

Justice Antonin Scalia wrote that the government needed a valid warrant before attaching a GPS device to the Jeep used by D.C. drug kingpin Antoine Jones, who was convicted in part because police tracked his movements on public roads for 28 days.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’ ” under the Fourth Amendment’s protection against unreasonable searches and seizures, Scalia wrote.

[…]

Alito’s point was that it was the lengthy GPS surveillance of Jones itself that violated the Fourth Amendment and that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”

“For such offenses,” he wrote, “society’s expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalogue every single movement of an individual’s car for a very long period.”

The only disagreement among the Justices was whether or not the decision went far enough to protect individuals in a 21st century world based on a 18th century law (i.e. the Fourth Amendment).

Hey, even a blind squirrel can find a nut once in awhile and in even rarer cases, 9 Supreme Court Justices.

***Correction/Further Analysis***
If you followed the link to The Washington Post article, you might notice that the parts I quoted don’t match up exactly. This is because the article has since been edited with a more complete explanation of what United States v. Jones really means. It appears that I put entirely too much trust into what was being reported in the media here and elsewhere (and I still haven’t gotten around to reading the opinion for myself).

Doug Mataconis (who is a lawyer; I am not) was the first to point out that the coverage of this ruling isn’t quite as good from a civil liberties perspective as the media would have us believe:

I think all you can really say is that, under circumstances of this case, the Court found that the use of the tracking device without a warrant was impermissible. As the majority opinion notes, however, the Government attempted to raise in their arguments to the Supreme Court the theory that the search was supported by reasonable suspicion and/or probable cause to believe that Jones was the leader of a drug gang. Under such a theory, the use of the tracking device would have theoretically been justified even without a warrant.

You can read a more detailed analysis from Doug here Outside the Beltway.

Doug also pointed me to this article by Orin Kerr at The Volokh Conspiracy post entitled “What Jones Does Not Hold”

It seems that I wasn’t the only one mislead about the true impact of this ruling. Even Radley Balko at The Agitator had to make some corrections to his post regarding this case and made reference to the same post by Kerr as well as an even more discouraging analysis from Tom Goldstein at SCOTUSblog.

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3 Comments

  1. The media is not reporting this decision entirely accurately, or at least not reporting what it means for future cases accurately.

    I think all you can really say is that, under circumstances of this case, the Court found that the use of the tracking device without a warrant was impermissible. As the majority opinion notes, however, the Government attempted to raise in their arguments to the Supreme Court the theory that the search was supported by reasonable suspicion and/or probable cause to believe that Jones was the leader of a drug gang. Under such a theory, the use of the tracking device would have theoretically been justified even without a warrant.

    The Court held that because this argument had not been raised in the Court of Appeals, or indeed at the District Court level, it was waived on appeal and the Court would not consider it.

    I refer you to the brief note from Orin Kerr at The Volokh Conspiracy entitled “What Jones Does Not Hold

    Comment by Doug Mataconis — January 23, 2012 @ 12:11 pm
  2. [...] find a nut once in awhile and in even rarer cases, 9 Supreme Court Justices. The Liberty Papers. View original post.SHARE IT Tweet REGISTER NOW! Users must be logged in for immediate display. We will review & post [...]

    Pingback by Police Placing GPS Tracking Device on a Vehicle Without Warrant Violates the Fourth Amendment - Death Rattle Sports | Death Rattle Sports — January 23, 2012 @ 1:41 pm
  3. Thanks Doug! I haven’t had a chance to read over the opinion; I’m sure there is much more to the case than the news articles are reporting. Volokh’s take would be a great place to start.

    Comment by Stephen Littau — January 23, 2012 @ 1:57 pm

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