On Monday, January 23, 2012, the US Supreme Court strengthened an individual's right to privacy under the fourth amendment. Unanimously.
In United States v. Jones,(text of opinion) the US Supreme Court voted that it is a violation of an individual's rights to be free from unreasonable searches and seizures to have a GPS tracking device placed upon his car without a warrant.
I'm a little surprised that this decision came out unanimously. The Supreme Court has previously held that it is not a violation of an individual's 4th amendment right when the police follow that individual as he moves through public space. Under a certain rationale, I can understand why a GPS tracking device on a vehicle is the logical extension of this principal. The vehicle's movement in public is monitored by the device, rather than an officer having to follow the vehicle around wherever it goes. This argument is one for expeditious and efficient policing. As fans of 4th amendment jurisprudence are certainly aware, courts get extremely nervous when the police come up with a new tactic to make their jobs easier and more efficient. The line of how far the police can go is one in their search for efficiency is one that is constantly being moved back and forth by the courts in an attempt to ensure that the defendant's rights are being safeguarded.
The rationale used by the majority (Justices Sotomayor and Alito filed concurring opinions to Justice Scalia's majority opinion) is that an individual does retain some expectation of privacy over his movements in public spaces and that, since a trespass to the individual's property occurs with the placement of the device, the fourth amendment does provide some protection for trespass on to personal property. The court is saying that the government's warrantless intrusion in to the effect's of an individual by the placing of a GPS device is a search in an of itself.
Justice Sotomayor, in her concurring opinion, goes further than the majority does. She agrees with the majority that the trespass to Jones' property here constitutes a violation of the 4th amendment, but states aa individual retains some reasonable expectation of privacy in the totality of his movements while in public, that any particular movement may be observed, but that an individual does not surrender his expectation that he will not be constantly followed.
Justice Sotomayor is further concerned with the unchecked expansion of executive power that this would represent. Essentially the court would be allowing the executive branch to know where any individual is any any point in time, without legislative or judicial oversight.
In his concurrence (joined by Justices Breyer, Kagan and Ginsburg), Justice Alito criticizes the majority for deciding "a 21st century issue using 18th century tort law." He would have the case decided squarely within the current 4th amendment jurisprudence. Justice Alito states that long-term warrantless observation of a suspect via a GPS device is violation of that individual's reasonable expectation of privacy.
This case also represents a departure from the natural progression of tracking device cases. The government relied heavily upon a US Supreme Court case allowing the warrantless placing of a tracking device in a vat of ether being transported from Minnesota to Wisconsin. But there is a fundamental difference that the court recognizes between the tracking of a vat of ether and an individual's movement. The individual himself has a reasonable expectation of privacy that can be violated by long term surveillance of his movements, a vat of ether on a single trip across one state border is a simply a different situation.
I am a big fan of this decision. The constant give and take between police tactics and the rights of a suspect/defendant is a dynamic one. Fourth amendment law is constantly evolving as police tactics change and evolve. The issue of how technology will affect police tactics is one of extreme importance as it does not seem that technology will stop evolving, nor will possible methods of intrusion in to people's lives by technological advances. This decision is one of scope, the court simply considered the monitoring of an individual's every move over a potentially endless period of time to be too broad, regardless of whether these activities took place in public or not. I look for future cases regarding the use of technology by police to assess the scope of the possible impingement on the privacy of the individual to determine whether warrantless action will be allowed.
The 4th amendment exists to provide a protection that individual's of all political ilk can get behind. People on the left side of the aisle can support a strong 4th amendment as it protects individual privacy interests, those on the right can support a strong 4th amendment because it protects against government intrusion in to people's lives and restricts the reach of the state.
As with all posts, nothing in this post should be considered legal advice. For legal advice, contact a criminal defense attorney in your area immediately.