In the upcoming October term, the Supreme Court will weigh in on the issue of whether police may use GPS tracking devices to watch over the movements of suspected criminals without first obtaining a warrant, or whether such activity violates an individual’s Fourth Amendment rights.  Currently, the Seventh and Ninth Circuits agree that the use of tracking devices does not violate Fourth Amendment rights, while the D.C. Circuit holds that the use of GPS without first obtaining a warrant is unconstitutional.

At the heart of the circuit split is the issue of whether people have a reasonable expectation of privacy in the totality of their movements over a prolonged period of time.  While the Ninth and Seventh Circuits found that movement on public highways is visible to anyone willing to watch, and therefore not subject to a reasonable expectation of privacy, the D.C. Circuit wasn’t persuaded.  In his opinion, Judge Ginsburg held that the totality of one’s movements (a collection of trips) tells a different story than any one discrete journey.  Therefore, while a person does not hold a reasonable expectation of privacy in a single drive, privacy as to one’s driving habits over a prolonged period of time is protected by the Fourth Amendment.  The court will need to decide whether to accept the arguments asserted by the Ninth and Seventh Circuits or adopt the “mosaic theory” reasoning of the D.C. Circuit.

This is not the first time that the Courts have taken the opportunity to review whether tracking technology may be used by police without first securing a warrant.  In United v. Knotts, the Court held that police could use beeper radar technology to track criminal suspects without a search warrant.  While it may seem that Knotts controls the issue at hand, GPS technology is a much more intrusive technology than beepers.  While beepers require that a receptor be within a certain physical proximity to the tracking device, GPS allows police to track from remote locations for months at a time.  The potential for prolonged tracking is sure to be a central issue for the Court in Jones.

— Stephen Josey

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4 Responses to GPS and the Fourth Amendment: Previewing United States v. Jones

  1. Stephen Josey says:

    Last month the Court heard oral arguments, and many of the justices seem to be quite worried about “big brother” implications of allowing police to track people without a warrant. Some memorable quotes:

    Justice Breyer: “[I]f you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.”

    Justice Sotomayor: “The GPS technology today is limited only by the cost of the instrument, which frankly right now is so small that it wouldn’t take that much of a budget, local budget, to place a GPS on every car in the nation.”

    Justice Ginsburg: “[I]f I’m on a public bus and the police want to feel my luggage, that’s a violation, and yet this kind of monitoring, installing the GPS and monitoring the person’s movement whenever they are outside their house in the car is not? It just — there is something about it that, that just doesn’t parse.”

    It will be interesting to see how the ruling pans out in the Spring.

  2. Kevin Lumpkin says:

    For Fourth Amendment advocates, this case is a good one to be a test balloon to the Supreme Court. Unlike similar cases out of the 7th, 8th, and 9th circuits, the tracking in this case was done continuously over a rather large period of time. I believe that the defendant’s vehicular movements were tracked for something like 28 days non-stop. Of all of the cases that could have gone up, this one has the most egregious set of facts from a Fourth Amendment advocate’s point of view.

  3. Ilana says:

    Perhaps the biggest challenge facing the Court is how to deal with the inadequacy of Fourth Amendment precedent as applied to new technologies. Apart from the Court’s limited technical understanding of new technology (which could be overcome with more research), a more pressing problem is that the Fourth Amendment framework– as it has evolved in precedent throughout the years– cannot be applied cleanly to modern technologies. The Court must first address the policy question of whether to continue applying an inadequate framework in the context of modern technology or whether to create a new framework that could evolve along with evolutions in technology.

  4. Hunter Branstetter says:

    Beneath the huge Fourth Amendment and expectation of privacy issues that saturate this case, I wonder whether the tech savvy–or lack thereof–of the current Supreme Court will a) make itself evident in this case as it did in City of Ontario v. Quon aka the sexting case or b) have the potential to influence the outcome of the case.

    Looking back at Quon, during oral arguments several justices struggled with technology concepts would seem rudimentary to me (and I would suspect to most people under 50): Chief Justice Roberts asked about the difference between pagers and emails, Justice Kennedy stumbled through the notion of sending texts to more than one person and what sms texts are generally, and Justice Scalia’s questions indicated a lack of understanding about the way service providers relay and retain text message information.

    To make a very uneducated prediction, determining how to frame the way in which GPS works could end up having a material impact on the way that each side presents its case. Conversely, after the negative press the Court received after Quon, the justices may make a point to be well-educated on the technology issues inherent in Jones or may, at least, be more careful about the questions they ask.

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