High Court Rules that GPS Tracker Violated Privacy Rights

Introduction

In what is being hailed as a “signal event in Fourth Amendment history,”[1]the U.S. Supreme Court ruled unanimously on January 23, 2012 that peace officers who placed a Global Positioning Tracker (GPS) device on a suspect’s car for 28 days violated the car owner’s right to privacy.  The Supreme Court opinion, authored by Justice Antonin Scalia for the majority in U.S. v. Jones,[2]held that placement of the GPS unit on the defendant’s car constituted a physical intrusion upon a person’s “effects” by a governmental entity, for which the Fourth Amendment’s prohibition on unreasonable searches and seizures requires that the government first obtain a warrant supported by probable cause.  While the minority also agreed that the GPS placement was a violation of the Fourth Amendment, it found that the violation was based upon Jones’ reasonable expectation of privacy, rather than his right to be free from unreasonable searches of his private property.  Regardless, what this landmark case makes clear is that prior to placing a GPS tracker on a suspect or person of interest’s vehicle, law enforcement must first obtain a valid search warrant. 

The Way it Was

Prior to Jones, it has been opined that state and local law enforcement personnel use GPS and similar devices, “all the time,” because, in part, “this type of technology is very useful for narcotics and terrorism investigations.”[3]  The use of this technology was premised on the theory that individuals have a lesser expectation of privacy when using modern technology which is widely known to track their movements or store their personal data, such as fast passes for vehicle bridge and tunnel use stored by governmental entities, phone numbers or texts stored by cellular providers; URLs and e-mail addresses stored by Internet service providers; and the books, groceries and medications purchases stored by online retailers. 

Jones

In 2004, defendant Antoine Jones, a nightclub owner in the District of Columbia (D.C.), came under suspicion of trafficking in narcotics and was targeted for investigation by a joint FBI and Metropolitan Police Department (Government) operation.  In 2005, the Government applied for a search warrant authorizing it to place a GPS tracker on Jones’ vehicle.  The warrant was granted, but only for 10 days and only within the physical confines of the D.C. area.  On the 11^th day, and outside of D.C., the Government installed another GPS tracker on Jones’ vehicle and monitored the vehicle’s movements for 28 days.  Based in part on over 2,000 pages of data that was generated by the GPS tracker over this 28 day period, the Government ultimately obtained a multiple-count indictment charging Jones with conspiracy to (1) distribute and (2) possess with the intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base.  Following Jones’ motion to suppress the GPS data, which was granted in part, a jury hung on the conspiracy charges.  A subsequent grand jury indicted Jones with the same conspiracy charges, and the Government introduced the same GPS evidence at trial, after which this jury returned a guilty verdict.  Jones was sentenced to life imprisonment.    

The U.S. Court of Appeals for the D.C. Circuit reversed the conviction because it found the admission of the evidence obtained by the warrantless use of the GPS tracker violative of Jones’ Fourth Amendment rights.[4]  The D.C. Circuit denied the Government’s en banc petition, and the U.S. Supreme Court granted cert to hear this matter.  After granting review, the Supreme Court held 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 constituted a “search” within the meaning of the Fourth Amendment.  

In reaching this conclusion, the Court made it clear that its analysis was based upon a careful reading of the language of the Fourth Amendment itself, which reflects a: 

“close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against the unreasonable searches and seizures;’ the phrase ‘in their persons, houses, papers, and effects’ would have been superfluous.”[5]

The Court traced the history of the Fourth Amendment’s close ties to property and trespass, beginning in 1889 with simple trespass on a landowner’s property,[6]through evolving technology with wiretaps.[7]  While the Court noted that Fourth Amendment search and seizure law deviated from an exclusively property-based approach 1967 in Katz v. U.S.,[8]the Court in Jones found that Katz merely established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.”[9]

The Court further distinguished the Jones case from two “beeper” cases, both of which were found to not violate – or  implicate – the Fourth Amendment at all.  In the first case, Knotts v. U.S., the plaintiff was tracked after his beeper had been placed in a container of chloroform.[10]  Since no actual data produced by the beeper was used by law enforcement to track the plaintiff, but rather the location of the vehicle carrying the container itself was tracked on public roads, this action was found not to have violated the Fourth Amendment because there is no reasonable expectation of privacy on public thoroughfares.  The second beeper case, U.S. v. Karo, was similar to Knotts in that it too dealt with a beeper placed in a container.[11]  However, it differed from Knotts in that the beeper was placed in the container with the then-owner’s consent prior to being placed in the hands of the defendant.  No violation of the Fourth Amendment was found under these specific circumstances.

Finally, the Court distinguished Jones from the case of New York v. Class, wherein the High Court stated in dicta that, “[t]he exterior of a car. . .  is thrust into the public eye, and thus to examine it does not constitute a ‘search.’”  As the Government in Jones readily conceded, the Court noted that it did far more than merely examine the exterior of Jones’ vehicle when it placed the GPS tracker on its undercarriage. 

What this means

What Jones means for local law enforcement using GPS technology to aid in their investigations is that they are now on notice that almost any such use of this particular technology in order to monitor an individual’s movement will be legally questionable unless a warrant is first obtained.  Jones signals a sea change in how courts will deal with electronic surveillance equipment under the Fourth Amendment.  Municipalities should review their training policies and directives on the use of electronic surveillance equipment in investigations in order to ensure that they are in compliance with the Supreme Court’s latest holding in Jones.