The Supreme Court on GPS Tracking: U.S. v. Jones

Yesterday, the United States Supreme Court decided United States v. Jones, the important GPS tracking case I previously blogged about here. (The case was captioned United States v. Maynard at that time.)

In brief, Washington, DC officers suspected that the defendant was a drug dealer. They wanted to track his movements, so they obtained a search warrant that allowed them to install and monitor a GPS tracking device on a Jeep owned by the defendant’s wife but driven exclusively by the defendant. However, while the warrant authorized installation of the device in DC within 10 days, the officers didn’t complete the installation until the 11^th day, in Maryland. They then tracked the defendant for 28 days. Among other things, they determined that he had visited a stash house in which the officers ultimately found large quantities of money and cocaine.

Facing drug charges, the defendant moved to suppress the tracking data. Because the officers had failed to comply with the terms of the warrant, the district court treated the officers’ conduct as being warrantless activity. (All subsequent courts followed suit on this point.) Nonetheless, it mostly denied the defendant’s motion, concluding that the defendant had no reasonable expectation of privacy in his travels on the public roads, and therefore, that the officers’ conduct was not a “search” for Fourth Amendment purposes. The government introduced the tracking data at trial and the defendant was ultimately convicted.

He appealed. The DC Circuit reversed, holding that prolonged GPS monitoring is a Fourth Amendment search. Distinguishing United States v. Knotts, 460 U.S. 276 (1983), which held that the short-term use of electronic “beepers” to track a suspect’s movements on the public roads did not intrude upon a reasonable expectation of privacy, the court wrote that “no single journey reveals the habits and patterns that mark the distinction between a day in the life and a way of life . . . . Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble.”

Some commentators called this the “mosaic theory” of the Fourth Amendment. Critics wondered how an accumulation of things that were not themselves searches could sum up to a search, and wondered how to draw the line between permissible warrantless short-term monitoring and improper warrantless long-term monitoring.

The government petitioned for certiorari, and the Supreme Court took the case. It affirmed the court of appeals. Justice Scalia wrote the majority opinion, which holds 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.’” However, the majority’s reasoning differs substantially from that endorsed by the DC Circuit. According to Justice Scalia, the key to the case is that “[t]he Government physically occupied private property for the purpose of obtaining information.” That is, the government trespassed when it undertook the “physical intrusion” of installing the device. And a trespass “conjoined with . . . an attempt to find something or to obtain information” constitutes a search for Fourth Amendment purposes. Indeed, according to Justice Scalia, such an intrusion onto private property for the purpose of gathering information was exactly the type of conduct the Framers of the Fourth Amendment intended to prevent.

This emphasis on trespass has roots in the Court’s precedents. As Justice Scalia notes, “our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.” However, in recent years, the Court has analyzed virtually all Fourth Amendment cases under the “reasonable expectation of privacy” rubric first enunciated in Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347 (1967). The majority does not repudiate that test – indeed, it explicitly reaffirms that governmental conduct that intrudes upon such an expectation is a search – but finds that the trespass analysis survives Katz as an alternative way of establishing that officers are undertaking a search regulated by the Fourth Amendment. And because the majority resolves the case under the trespass analysis, it declines to reach the issue of whether GPS tracking is a search under the expectation of privacy analysis.

Justice Alito concurred in the judgment, and wrote an opinion joined by three other Justices. His opinion argues that the expectation of privacy analysis in Katz supplanted, rather than supplemented, the trespass approach to the Fourth Amendment. In support of this claim, the opinion quotes several excerpts from Katz and later cases to the effect that a physical trespass is neither necessary nor sufficient to establish a Fourth Amendment violation. Thus, Justice Alito views Justice Scalia’s emphasis on the law of trespass as archaic and unhelpful. Analyzing the matter exclusively under the expectation of privacy test, Justice Alito finds that the officers’ conduct amounted to a search essentially for the reasons given by the court of appeals: “[R]elatively 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 joined Justice Scalia’s majority opinion, but wrote a separate concurrence that strikes me as very important. She agreed that the case was properly resolved under the trespass analysis. But she plainly indicated that she would also have found a Fourth Amendment search even absent a trespass. That is to say, she “agree[d] with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’” That’s significant because it means that there are five votes – Justice Sotomayor plus the four Justices who signed Justice Alito’s opinion – for the view that prolonged GPS tracking is a search even if it can be done without a trespass, for example, by concealing a tracking device inside an object and then convincing the suspect to accept the object into his vehicle, or perhaps by using a vehicle’s built-in GPS system. (Justice Sotomayor also suggested that even short-term GPS tracking might be a search, and that the Court should reconsider the doctrine that a suspect’s disclosure of information to a third party destroys his expectation of privacy in that information vis-à-vis the police, though no other Justice joined her in expressing those sentiments.)

Newspaper coverage of the case is here. Orin Kerr, a leading scholar in this area whose article was cited by both the majority and the principal concurrence, has been posting like crazy at the Volokh Conspiracy. Rather than link to his many posts individually, I’ll just link to the front page of the blog and you can scroll through. I may have more thoughts about this case later, and if so I will do a follow-up post. Stay tuned.