Warrantless Placement of a GPS On a Car

The U.S. Supreme Court has made a quick decision on the constitutionality of law enforcement placing a GPS tracking device on the undercarriage of a suspect’s car without a warrant.  The case, U.S. v. Jones, just argued in November, was decided January 23.  All nine justices agreed this was unconstitutional.  But they split 5-4 on the reasoning for the decision, with Justice Sotomayor actually straddling both camps.

Jones owned a night club in D.C.  He came under suspicion for drug trafficking.  Although the police had originally gotten a warrant, it had expired by the time they placed it under Jones’ jeep, and it had only been valid for use in Maryland. The government conceded the invalidity of the warrant, but argued no warrant was required in the case.  The government tracked Jones’ every movement for a month, and gathered enough evidence to have him charged with conspiracy to distribute cocaine.  Before trial, Jones moved to suppress the evidence gathered by the GPS. Jones was ultimately convicted of conspiracy to distribute cocaine and sentenced to life in prison.  The U.S. Court of Appeals for the District of Columbia reversed his conviction because of the improper admission of the warrantless GPS evidence.

Justice Scalia wrote the decision for five members of the Court.  His analysis, originalist  in tone, was based on common law trespass. Those signing on to Scalia’s opinion agreed that installing the GPS and monitoring the car’s movement constituted a search. This point was not obvious, and the government had strenuously argued there was no search in this case, in Fourth Amendment terms. Scalia based his conclustion on an 18th century property-based approach, tracing this back to the common law tort of trespass to chattels. And to think my first year torts students find no use for this old doctrine!  “The Government physically occupied private property for the purpose of obtaining information. 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.”

Justices Kagan, Breyer, and Ginsburg joined Justice Alito’s separate concurrence, which took a privacy-based approach. They agreed that the lengthy monitoring that occurred was a search under the Fourth Amendment. But the violation they find is of the defendant’s reasonable expectation of privacy, not of a trespassory invasion. In an unusual split from the conservative ranks, Justice Alioto had this to say about Justice Scalia’s property-based analysis:

“This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Po­sitioning System (GPS) device to monitor a vehicle’s move­ments for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS deviceto the under­side of the vehicle that respondent drove, the law enforce­ment officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search.

This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial….[I]t is almost impossible to think of late 18th century situations that are analogous to what took place in this case.”

Wow! That’s as interesting as the privacy conclusion.

Justice Sotomayor signed on to the Scalia camp to make this the majority rationale, because, as she noted, the reasonable-expectation-of-privacy test supplemented, not replaced, the common law trespassory test. She felt the physical intrusion analysis was the narrower way to resolve the case, but made clear her sympathy for Justice Alioto’s privacy position as well. She noted that “physical intrusion is now unnecessary to many forms of surveillance,” and that the day may be fast arriving when “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”

A Few Thoughts

I found it interesting that nowhere in the case did any justice just flat out say, next time you place a GPs on a car, go out and get a warrant.  Someone must have thought that initially in this case, since the police did have a warrant, which they let expire. As a fallback position in this case, the government argued that if the attachment of the GPS was deemed a search (it argued throughout that it wasn’t) then it was a reasonable one because the police had reasonable suspicion or probable cause to believe Jones’ role in the conspiracy.  Not every Fourth Amendment intrusion requires a warrant or probable cause. The government asked the Court to apply a balancing test and a rule of reasonableness. This last argument got harshly slapped down by Justice Scalia who held that the argument was waived because it wasn’t raised below. But that argument could come up again in a different case.  

The Supreme Court of Ohio and State v. Johnson

Shortly before the Jones case was argued before the U.S. Supreme Court, in October the Supreme Court of Ohio heard the case of State v. Johnson 2011-0033. In the Johnson case, the police, based on various tips, but without a warrant, attached a GPS to the defendant’s van. Ultimately, evidence obtained through the GPS led to Johnson’s indictment for trafficking and possession of cocaine. Johnson unsuccessfully tried to suppress the evidence from the GPS. Both the trial court and the appeals court held that the police did not need a warrant before placing the device on the car, and that Johnson had no reasonable expectation of privacy in the undercarriage of his car, or on public roads.

Johnson’s proposed proposition of law in the case is this:

“Surreptitious placing of a GPS monitoring device in an individual’s vehicle by law enforcement and uninterrupted electronic tracking and recording of movements without spatial or temporal limitation is constitutionally impermissible absent a warrant based upon probable cause”

To me, Jones should determine the outcome of this case. At oral argument a majority of the justices did not seem particularly swayed by the privacy arguments advanced, although given the position of four justices in the Jones case, that could change.  But after Jones, the Ohio Supreme Court seems obliged to conclude that what occurred in Johnson was a search, even though the prosecution argued that it wasn’t.  It will be interesting to see if any of the Ohio justices use Scalia’s trespass test. Regardless, the Ohio high court must still decide if the search required a warrant. Unlike the government in the Jones case, the prosecutor in Johnson did not waive that argument. The state here argued that even if the court finds that use of the GPS tracking device was a search, it was not unreasonable, nor was exclusion of the evidence required. But that does circle back to the expectation of privacy argument.

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