US Supreme Court US v. Jones 10-1259

Decision here. 

   I meant to write this one up last Monday, but I've been in training all week and haven't had time.

   Here's the facts: Jones was being investigated for drug trafficking, and as part of of the investigation the government (an FBI/Metro PD task force) obtained a search warrant to place a GPS on his jeep (his wife's actually, but he was the only driver). The warrant authorized the police to install the GPS on the jeep within 10 days of its issuance, and the installation had to occur within Washington, D.C. So they did what anyone would do, and installed the GPS 11 days later while the jeep was parked in Maryland. They continued their investigation using the GPS, and eventually Jones was convicted of drug trafficking. After his conviction, Jones was sentenced to life in prison.

   Prior to his trial, Jones had filed a motion to suppress the evidence obtained from the GPS, which was substantial in that it tied him to a stash house that contained lots of money and cocaine. The district court suppressed the evidence obtained while the jeep was parked at Jones' residence, but admitted the rest because it held that Jones had no reasonable expectation of privacy in his location while moving along a public roadway. The first trial resulted in a hung jury, and a retrial ended with his conviction. Jones appealed, on the grounds that the GPS evidence should have been suppressed.

   The court of appeals held that the GPS evidence should have been suppressed. The government appealed, arguing that the GPS was not a search for Fourth Amendment purposes (because Jones didn't have a REP in his location?). At first, I thought that the government had effectively abrogated this position back in the beginning of the investigation, when they applied for a warrant (something that we don't normally do when our intended activity doesn't amount to a search). But since an officer's subjective intent doesn't matter for Fourth Amendment analysis, so long as the facts are reasonable, the government could have argued that the officers thought they were conducting a search (and therefore applied for a warrant) even though they actually weren't... I don't know if that's what they were going for, it's just the only thing I could think of to salvage such a bizarre argument. The government raised an alternate argument on appeal that even if this was a search, it was a reasonable one. Since this argument was first raised on appeal, the Court refused to consider it.

   Anyway, the opinion. Here's where it gets confusing. There are actually three opinions written for this decision. Every Justice held that the evidence should have been suppressed, but they couldn't seem to agree on why. Five justices joined in the majority opinion, and one of those also wrote her own concurring opinion. The four remaining justices joined in a concurring opinion which concurred only in the outcome. So:

   Majority (barely) opinion: For most of US history, the primary test for determining whether or not something was a search for Fourth Amendment purposes was whether or not the government's actions would have been trespass under common law (specifically, trespass against someone's person, house, papers, or effects. Even though it was possible to commit common law trespass in an open field, open fields are not mentioned in the Fourth Amendment, so the Fourth Amendment is not implicated at all when an open field is searched. A vehicle, on the other hand, is someone's "affect," so the Fourth Amendment is implicated here). In 1967, the Supreme Court in Katz v. US created the reasonable expectation of privacy test (that phrase actually appears in a concurring opinion, but subsequent search and seizure decisions have followed its reasoning). However, nothing in that decision actually abrogated the old test, but only added to it. In this case, the police installed a hidden device on Jones' car (the Court compares this to a constable stowing away in a carriage to obtain information that would incriminate the occupants, such as their destination or conversations). Under the English Common Law prevalent at the time that the Fourth Amendment was drafted, this would have been a trespass. Therefore, installing the GPS was a search. Since installing the GPS was a search, and since there was no valid warrant or exception to the requirement for one, the evidence should be supressed.

   Concurring opinion #1: One of the Justices who joined in the majority opinion wrote this. This opinion suggests that the real concern isn't the installation of the GPS device, but the detailed personal information which can be surreptitiously obtained by one. This opinion suggests that a person's expectation of privacy in her GPS location may be something that society is prepared to recognize as reasonable, because of the wealth of personal information that can be obtained. Under the reasoning of this opinion, obtaining someone's location by using GPS information signals from their own phone might be protected by the Fourth Amendment (as it should be, in my opinion). However, since the trespass test is sufficient to dispose of the case at hand, it isn't necessary to make a ruling on the other issues raised by this opinion.

   Concurring opinion #2 (in which four justices joined): This opinion suggest that the actual installation of the GPS isn't the issue, and criticizes the majority for using 18th century common law as the basis for a decision on 21st century technology. Regarding the stowaway constable metaphor, this decision says "The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience." This opinion suggests that the issue is the amount of time that the police continued to monitor Jones' location by GPS, and that sometime before reaching the four week mark this became a search for Fourth Amendment purposes. Prior to the advent of GPS technology, this kind of surveillance would have required a team of agents, multiple vehicles, and perhaps aerial assistance. The amount of resources required meant that only important investigations would include this sort of tactic. Now, this kind of surveillance can be accomplished cheaply and easily. This opinion reasons that relatively short-term surveillance is ok, but longer term surveillance conflicts with a person's reasonable expectation of privacy (depending in part on the severity of the offense). The only guidance this opinion offers to differentiate between short term and long term surveillance is that four weeks falls well within the realm of long term.

   Personally, I'd have liked to see a majority opinion that more closely resembled concurring opinion #1. It was the opinion that made the most sense to me, and that focused the most on what I see as the real issue in this case (electronically monitoring someone's location without their knowledge). But I guess that unless I eventually end up with "the honorable" in front of my name, I'll just have to roll with what the court gives me.