The Decision

The unanimous decision in January 2012 found that installing a GPS device to track a suspect for 28 days was a “search” within the meaning of the Fourth Amendment, and therefore required a warrant signed by a judge. Justice Antonin Scalia’s opinion for five justices said the police action of installing the GPS device on the vehicle of Antoine Jones’s wife was a physical trespass that constituted a search within the meaning of the Fourth Amendment. Justice Samuel Alito’s concurrence also asserted that long-term GPS surveillance may violate a person’s “reasonable expectation of privacy.” Five justices also agreed with that conclusion.

The United States Supreme Court, the highest court in the United States, in 2010. Top row (left to right): Associate Justice Sonia Sotomayor, Associate Justice Stephen G. Breyer, Associate Justice Samuel A. Alito, and Associate Justice Elena Kagan. Bottom row (left to right): Associate Justice Clarence Thomas, Associate Justice Antonin Scalia, Chief Justice John G. Roberts, Associate Justice Anthony Kennedy, and Associate Justice Ruth Bader Ginsburg. (Photo credit: Wikipedia)

A Sea of Change

When the U.S. Supreme Court ruled in favor of the defendant, the FBI was operating about 3,000 GPS devices, many stuck underneath cars, according to FBI general counsel Andrew Weissmann. Weissmann told an audience at the University of San Francisco on February 24 that the decision has spurred a “sea of change” within the FBI to develop new guidelines for using GPS. According to Weissmann, it was Alito’s concurrence that signaled the Court is concerned with long-term technological surveillance, even beyond attaching GPS devices, and that FBI agents need new guidance in order to ensure that evidence they collect remains admissible in court.

On March 7, FBI Director Robert Mueller told a House Appropriations subcommittee that the bureau has turned off a substantial number of GPS units and is using surveillance by agents in their place. He also said that many GPS trackers were placed with court authorization and therefore were not deactivated.

The FBI is surveilling these individuals over a long period of time because they do not have probable cause to arrest them. The use of GPS trackers, Mueller said, has enabled the FBI to utilize field agents and other resources elsewhere. Mueller argued that adopting policies in line with the Court’s decision puts a burden on the FBI.

The Jones’ Case Specifically

However, a closer look at the Jones case shows that the FBI actually sought a warrant and was granted one. It simply failed to comply with the terms of the warrant – that a device be installed in the District of Columbia within 10 days, leading the government to argue that it wasn’t legally required to obtain one. The Jones decision constitutionally requires the FBI to do no more than what it originally intended (but failed) to do.

Broader Implications

The more likely source of anxiety among federal law enforcement is Alito’s concern for other surveillance that does not involve physical trespass. “Suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased?” he posed in the concurring opinion. According to five members of the Supreme Court, this kind of silent intrusion would violate one’s reasonable expectation of privacy.

The “Right to be Let Alone”

What gives the FBI anxiety may also provide hope to civil libertarians, who have voiced concern about the geographic privacy of cell phone users, privacy of stored email, and anonymity of web searches. The collection and storage of such data by private corporations is legal. But a majority of the Court suggests that people have a reasonable expectation that such data would not be identified with specific individuals and used against them by the government.

Such concern was expressed in 1928’s Olmstead v. US, the first wiretap case to reach the Supreme Court. The Court’s 5-4 ruling that a wiretap was not a Fourth Amendment “search” was eventually overturned by 1967’s Katz v. US, which enshrined the “reasonable expectation of privacy.” But even in 1928, Justice Brandeis stressed that the Bill of Rights also spoke to “subtler and more far-reaching means of invading privacy” than traditional searches and seizures. In his dissent, Brandeis said that the makers of our Constitution “sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone.”

And what of Antoine Jones, the nightclub owner whose conviction on drug conspiracy charges was overturned?

The government plans to retry him, without using the GPS-related evidence.

Author Bio:

Written by Jessica Stambaugh for the firm of Price Benowitz, LLP where each Virginia car accident attorney is devoted to helping you navigate the waters of your case.

by Matthew L. Schafer

On January 23, 2012, the Supreme Court addressed for the first time whether the attaching of a GPS device to a citizen’s car and its subsequent use constituted a search.  The Court held that it did.

“We hold 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,’” Justice Antonin Scalia stated for the Court.

Unfortunately, the media wrongly interpreted the Court’s opinion as requiring the government to seek a warrant before using a GPS device.  Indeed, as explained previously, the Fourth Amendment only protects citizen’s from unreasonable searches and seizures.  The Court never decided whether the search in this case was, in law, unreasonable.  If similar uses of GPS searches are found to be reasonable, however, then even if the search occurred, police would not need a warrant for that search.

Nonetheless, in the hours and days after the Court’s decision in Jones, many newspapers inaccurately claimed variously – exuberantly in some cases — that the “Supreme Court says police need warrant for GPS tracking.”  The Washington Post titled one of its early articles, “Supreme Court: Warrants needed in GPS tracking.”

Numerous similar examples exist:

International Business Times: GPS Tracking: Supreme Court Rules Warrant Needed, Fourth Amendment Upheld

CBS News: High court: Warrant needed for GPS tracking

Kansas City Star: Warrant needed to track suspects with GPS, justices rule

Christian Science Monitor: Unanimous Supreme Court: Get a warrant before installing GPS tracking device

Associated Press: Warrant needed for GPS tracking, high court says

NPR: Supreme Court: Warrant Needed For GPS Tracking

ABC News: GPS Tracking Requires Warrant, Supreme Court Rules

AFP: Warrant needed for GPS tracking: US Supreme Court

These headlines are just a few exemplars of how even the large, national news organizations were unable to “get the story right.”  Not only were the headlines misleading, but what is worse is the faulty explanations that accompanied the titles.

“Associate Justice Antonin Scalia said that the government’s installation of a GPS device, and its use to monitor the vehicle’s movements, constitutes a search, meaning that a warrant is required,” Jesse Holland and Pete Yost for the AP wrote.  ”All nine justices agreed that the GPS monitoring on the Jeep violated the U.S. Constitution’s Fourth Amendment’s protection against unreasonable search and seizure.”

Of course, this is exactly what the Court did not hold.  It never held that the search at issue in Jones was an “unreasonable” one.  Justice Scalia specifically passed on this issue, writing, “The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment . . . . The Government did not raise it below, and the D.C. Circuit therefore did not address it. . . . We consider the argument forfeited.”

Faulty explanations of Supreme Court holdings or misleading headlines written by news organizations like the AP are especially dangerous, because the vast majority of the public come to understand the law through the media — not the Supreme Court’s opinions.  It is the media’s responsibility to tell the people what the government is and is not allowed to do after influential Supreme Court opinions are handed down.

As one scholar stated, “Public opinion of judicial behavior and law are of vital consequence in the American legal system as a critical aspect of a polity based upon principles of popular sovereignty and limited government.”

When the press fails to accurately inform the public, public opinion about not only the Court but the law itself will naturally be misinformed.  Of course, the press in today’s media climate is, more than ever, under pressure to push out news copy at an increasingly rapid clip.  This increasing pressure is especially debilitating when it comes to covering the courts, where journalists, as lay persons, are ill-equipped to dissect a legal opinion in a few hours and then attempt to explain that opinion to yet other lay people.

Inaccurate press coverage in Jones should be a learning experience.  First, if news organizations fail to accurately explain legal opinions, those organizations should issue corrections.  In this case, few if any did.  Second, before publishing an article, journalists should consult with legal experts.  This check would help to prevent a complete misreading of judicial opinions.  If nothing else, it would give the journalist plausible deniability.

In short, journalists should be more responsible when dealing with judicial opinions.  Now, unfortunately, the vast majority of the American public likely believes that police cannot — without a warrant — install a GPS device on their vehicles.  Because it is unclear if that is actually the case, the American public is the loser as a result of this journalistic imbroglio.

The implementation of the “pre-crime” system in East Orange comes just after the Supreme Court’s ruling in United States v. Jones where the court limited police’s ability to track suspects with GPS. Can we look at the Jones ruling to shed some light on whether or not the red-light cameras are constitutional? I talk about that and other concerns over the lights with JJ and Crank. Listen to the audio below.

     This past week, the Charleston School of Law sponsored its fifth annual National Moot Court Competition.  The problem involved the warrantless placement of a GPS tracking device on a vehicle.  The student teams argued  whether this placement violated a defendant’s Fourth Amendment rights.   The fact pattern mirrored the facts found in the recent U.S. Supreme Court decision in United States v. Jones.

According to a press release drafted by Andy Brack,  “Florida State University College of Law students Alexandra Haddad and Elliott Smith were named team champion….This year, the Florida State team bested 22 other teams from the 14 schools that took part in the competition.  Smith also was named the Best Oralist, or contestant with the best oral presentation in the championship round before a group of judges.  Runner-up in the 23-team contest was the two-person team from Florida Coastal School of Law:  Michael Hopkins and Lance Davies.  Other honorees are:

“This weekend’s fifth successful national moot court competition in constitutional law again demonstrates that our Charleston School of Law enjoys a national reputation, said Associate Professor and moot court advisor Miller Shealy.  “This year we attracted 14 teams of students from as far away as Chicago and Maine.  Not only is our competition good for the school, but Charleston gets great exposure — and business — too!”

In Rudder v. Williams [PDF], the D.C. Circuit reinstated an excessive force suit brought by three adults and two children against two police officers.  The plaintiffs claim the officers beat them to the ground with batons at D.C.’s Caribbean Carnival when they left the sidewalk to hug family members in the parade.

photo credit: dcsplicer

The D.C. Circuit reversed the district court’s sua sponte dismissal of all five plaintiffs’ Fourth Amendment excessive force claims.  Several lines from that analysis will be quoted frequently by future plaintiffs:

A person who responds verbally to a police officer assaulting a child hardly invites violence against herself.

Unlike, say, pushing an arrestee against a wall and pulling his arm behind his back, beating a suspect to the ground with a baton exceeds in violence anything we would expect in the course of a routine arrest.

Justice requires that a plaintiff be afforded the opportunity to refine his allegations without losing forever the right to litigate his claims on the merits.

But the most important part of the opinion may be its holding that the district court erred in dismissing the children’s common law tort claims “with prejudice,” even though–in response to a motion to dismiss–the plaintiffs “inexplicably” conceded that those claims were time-barred.  As it turned out, the concession was incorrect–the statute of limitations does not begin to run until the plaintiffs reach the age of majority.  Judge Ginsburg held that because “the deficiency in this case lies not in the complaint but in the plaintiffs’ erroneous concession,” the district court should have dismissed those claims without prejudice to their being filed anew.

In future cases, this anti-waiver holding may be limited to child-plaintiffs on the ground that minors cannot intelligently waive legal rights.  But on its face, the opinion suggests that the district court may never rely on a plaintiff’s express concession to dismiss his claim with res judicata effect–at least where the concession is based on an overt mistake of law.  The opinion cannot mean that a court must second-guess the plaintiff whenever he waives an argument.  Indeed, it held that the appellants abandoned or forfeited their Fifth and Fourteenth Amendment claims against the District by conceding them in the district court and failing to press them on appeal.

Rudder v. Williams, No. 10-7101 (Jan. 17, 2012) (Ginsburg, J., joined by Henderson & Kavanaugh, JJ.)

See also:

• Orin Kerr, Reader Poll on Tasing of OccupyDC Protester, Volokh Conspiracy (Jan. 30, 2012) (video of recent, unrelated incident involving U.S. Park Police)
• Orin Kerr, More on the OccupyDC Tasing Video, and Two Narratives of Police-Citizen Interaction, Volokh Conspiracy (Jan. 31, 2012) (“The equality narrative posits that the police are just citizens who happen to wear uniforms, and they have no more right to get their way than anyone else. . . . The inequality narrative posits that the police have special authority by virtue of being police officers, and that people interacting with the police have to recognize that special authority and should expect trouble if they don’t. . . . The video . . . presents a circumstance in which viewers can reasonably differ as to whether we should be in the equality-narrative zone or the inequality-narrative zone. . . . [D]ifferent viewers fill in the uncertainty by just picking a narrative.”)
• Rose Bouboushian, Cops Still Face Claims of Beating Kids at Parade, Courthouse News Service (Jan. 25, 2011).
• Orin Kerr, What’s the Status of the Mosaic Theory After Jones?, Volokh Conspiracy (Jan. 23, 2011) (“[T]he mosaic theory seems like a revolutionary new approach to Fourth Amendment law, and yet here 5 Justices seem ready to embrace it without even really recognizing how dramatic the change might be or what it might mean. Perhaps that means that the Justices see it as having some non-obvious limitation that makes it narrower than it might seem. Perhaps it only would apply to GPS devices or beepers, for example? Or perhaps the Justices just didn’t think too deeply about the issue and the complications it raises — perhaps because Scalia came forward with his new trespass test and any other theory would just be dicta?  Either way, the biggest surprise of Jones is that the mosaic theory lives. And it may have five votes.”)

by Matthew L. Schafer

On January 23, the Supreme Court released its long-awaited opinion in United States v. Jones, a case asking whether government installation and subsequent use of a GPS device on the undercarriage of a citizen’s car constituted a search.  The Court held that it did.

In Jones, a joint task force comprised of the members of the Federal Bureau of Investigation and Washington D.C.’s Metropolitan Police Department sought and received a search warrant to place a GPS device on the Jeep of Antoine Jones.  The warrant the task force received required the GPS device be installed on the car in ten days within the District of Columbia.

Officers, however, messed up.  They did not install the device within ten days — it was the eleven days.  Moreover, when the officers did install the device on the car, they did so in Maryland instead of DC.  Nonetheless, they still collected troves of information about Jones’ movement for twenty-eight days from the use of the tracking device.

In United States courts, when search warrants are not issued or officers fail to execute an issued warrant as the magistrate instructs, defendants can move to have the evidence gathered suppressed.  Simply, if officers do not follow the rules, the evidence they gather cannot be used against the defendant, because the Fourth Amendment protects citizens from “unreasonable searches and seizures.”

Jones argued just this.  He asked that the court suppress the evidence gathered as a result of the poorly executed warrant.  At trial, a federal district court ordered that any evidence gathered from the GPS device while the car was in Jones’ garage (a historically private place) must be suppressed but evidence gathered while the car was on public roads need not be suppressed.

The trial court cited a well-known Supreme Court case when it issued its order.  The Court decided the case, Knotts v. United States, in 1983, stating simply that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

At its most basic, the Court in Knotts, acknowledged that a long line of precedents beginning with Katz v. United States held that a search within the meaning of the Fourth Amendment occurs when a person has a reasonable expectation of privacy in the thing searched and that expectation is one society is willing to recognize as legitimate.  For example, a couple has a reasonable expectation of privacy in their own bedroom, and society would likely see such an expectation as legitimate.

On the other hand, because people do not have a reasonable expectation of privacy in their movements while in public (anyone can watch another in public after all), then the government could track Mr. Knotts’ movements on public roads using an antiquated beeper.

On appeal, however, the court held that Knotts did not apply to Mr. Jones, because in Knotts the Supreme Court “distinguished between the limited information discovered by use of the beeper—movements during a discrete journey—and more comprehensive or sustained monitoring of the sort at issue in this case.”

In short, the appellate court held that Jones is different from Knotts, because the officers tracked Mr. Jones a much greater amount of time.  Therefore, the court held that “the whole of a person’s movements over the course of a month is not actually exposed  to the public [and, as such, protected] because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.”

At oral argument in Jones, the government relied heavily on Knotts, despite the lower court’s ruling.  Surprisingly, however, when the Supreme Court handed down its opinion last week, it did not rely on Knotts – its own case seemingly on point.  Instead, the Court, through Justice Antonin Scalia ironically revived what forty-four years of law students have been taught is for all intents and purposes dead law–eighteenth century constitutional trespass.

Justice Scalia wrote the Court's opinion in United States v. Jones. (Flickr/The Higgs Boson)

“Jones’s Fourth Amendment rights do not rise or fall with the Katz [reasonable expectation of privacy test] . . . ,” Scalia stated for the Court.  ”At bottom, we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’  As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.”

It now appears, then, that a citizen need not always have a reasonable expectation of privacy in a thing to argue that a search occurred.  (Or, perhaps, one could say that because property  enjoys such a wide range of protection it per se carries with it a reasonable expectation of privacy in the property.)

Notably, in Knotts and another beeper tracker case, United States v. Karo, officers hid the beepers in a container with the consent of the owner of the container.  Thereafter, the containers found their way into the suspect cars.  Therefore, those cases did not control the result in Jones, Scalia wrote, because Mr. Jones never gave officers permission to place the GPS device directly on his car in the first place.

Thus, the Court held that the installation was, in law, a search, because it amounted to a constitutional trespass of property.  What the Court did not decide, however, was whether the search was unreasonable.  Indeed, officers can still perform a search without violating the Fourth Amendment if that search is “reasonable.”  Specifically, the Fourth Amendment only protects citizens from “unreasonable searches and seizures.”  This is what caused many commentators to argue that the 9-0 decision against the government was not as unfavorable to the government as everyone thought.

Despite warnings that the decision is not as broad as many argue, it seems quite possible that it is not as narrow as others argue.  Indeed, “warrantless searches are presumptively unreasonable under the Fourth Amendment, [and] the government bears a ‘heavy burden’ of proving [an exception].”  See, e.g., United States v. McClain, 444 F.3d 556 (6th Cir. 2005).

So how does a court know when a warrantless search is reasonable?  Well, there are certain exceptions to the “warrant requirement” that the Court has carved out over the years.  Such exceptions include:  hot pursuit, a search incident to lawful arrest, plain view, plain feel, an exigent circumstance, and an automobile exception.

It isn’t necessary to explain what each exception is, it is only necessary to note that (1) many courts have never reached the question of whether attaching a GPS device to a car is unreasonable, because they applied the Katz test to the tracking and found that no search (reasonable or not) occurred in the first place under Knotts, and (2) attaching a GPS device does not fit nicely into any of the exceptions.

Of course, the “automobile exception” sounds applicable here, but it sounds applicable in name only.  The exception is of an old vintage (first enunciated in the 1925 case, Carroll v. United States) and essentially allows officers to search a car when that officer has probable cause, “because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.”  At its most basic, the automobile exception is based on the idea that physical evidence will be lost to the police if society does not allow officers to search a car when they have probable cause to believe it contains evidence.

In Carroll, the search was upheld because the Court was afraid that not upholding the search would have allowed Mr. Carroll, a rum-runner, to destroy or otherwise remove the liquor bottles hidden within the seats of the car.

Here, the same logic cannot apply to GPS tracking.  Indeed, there is nothing that the officers need fear will be destroyed by requiring them to seek a warrant to install the device.  There is nothing intrinsic in the car itself that is or contains evidence.  There is nothing that will be lost to the officers necessarily; indeed, they can simply use less-invasive alternative methods (like a stake out, for example) to track the movements of a citizen.  (As the D.C. Circuit stated in Jones, quoting the Supreme Court, “The fact that equivalent information could sometimes be obtained by other [lawful] means does not make lawful the use of means that violate the Fourth Amendment.”)

Thus, it is fair to conclude that the Court’s ruling in Jones was not as broad as many suggested.  On the other hand, it was not as narrow as others seemed to suggest.  If anything the Court took the middle ground, and likely got to five votes because of it.  Nonetheless, as many have pointed out, there are still many many questions about technology and privacy that remain unanswered.

In other words, we’re still not sure what SCOTUS thinks on the larger issue of electronic surveillance. But there are some encouraging signs nonetheless.

The Dirty Details
Despite being decided 9-0, US v. Jones was highly contentious. Scalia’s majority opinion, joined in full by 3 other Justices (with Justice Sotomayor providing a less than enthusiastic final vote) emphasized that the violation of the 4th amendment was the government’s physical invasion of Jones property for the purpose of conducting surveillance, pointedly avoiding addressing the broader question of electronic surveillance (for example, would government surveillance via drone violate the 4th amendment, since it wouldn’t involve a physical invasion?).

While this has been a traditional way to look at the 4th amendment (Scalia/tradition tend to be peas in a pod), the landmark case United States v. Katz moved away from it, introducing a new test: Whether one has a “reasonable expectation of privacy” in a given situation. If the government spies on you in your house, that is a violation of the 4th amendment since you have a “reasonable expectation of privacy” in your own home. If the government tails you on public streets, that is not a violation, since you don’t have a “reasonable expectation of privacy” while out in public.

The ease with which the police can use electronic equipment to gather information about suspects has led to a bevy of civil liberties concerns which Scalia does not address, but seems to leave the door open to. He emphasizes that, in his view, the traditional test and the Katz test are BOTH valid tests, and he is deciding this case based on trespass because it is the narrower ground. The door has been left open for the justices of the majority to find violations of the 4th amendment on broader grounds. Whether or not they choose to go through it is another question.

On the positive side: Sotomayor is clearly willing to go further than any other Justice in protecting civil liberties under the 4th amendment. In her own separate concurrence, she suggests that even remote electronic monitoring on public streets without a warrant may violate the 4th amendment. She also raises several interesting points as to why this is an important issue right now. Traditionally, following and monitoring a suspect took a lot of manpower and resources, so authorities could track and follow the most important suspects. Their ability to play big brother was limited by their resources. With GPS and other electronic devices, this barrier has been removed. The authorities now have the ability to gather information on suspects easily and with little expense. In light of this new technology, Sotomayor says that SCOTUS should not “treat secrecy as a prerequisite for privacy” in 4th amendment cases. However, she agrees with Scalia that this particular case can be decided on narrower grounds, and joins the majority – this time.

Justice Alito’s concurrence was joined by three other justices. Alito chides Scalia for refusing to confront the large issues of electronic monitoring, saying that Court disregards the use of the GPS for long term tracking and instead attaches great significance to placing the tracker on the car – which would not be recoverable in modern tort law. He also takes issue with his interpretation of precedent, and thinks that the Katz test has superseded the traditional rule (he even disputes whether the trespass rule Scalia describes is really the rule at all). He concludes by saying that the long term electronic monitoring conducted without a warrant is a violation of the 4th amendment, and concurs in judgment on those grounds.

While it was disappointing that SCOTUS left so many questions unsettled by deciding this case on such narrow grounds, it appears to me that there would likely be a majority willing to uphold a broader reading of the 4th amendment given the right case. Time will tell – keep your fingers crossed.

I have little doubt that the litigant in this case, Antoine Jones, is probably guilty of narcotics trafficking as accused.  But that alleged fact alone does not alleviate the government’s responsibility to conduct itself in a manner consistent with high standards of law enforcement ethics and constitutional propriety.  This case, in that sense, becomes much bigger than Jones and illustrates that principle – the foundation of credibility and legitimacy where a relationship between government and the consenting governed are concerned – must be exercised even when it is inconvenient or when it might result in the guilty going free.  No system is perfect in practice so when difficulties arise in our governmental system, we must err on the side of protecting individual rights pursuant to government’s just purpose; consequentialism is a well-practiced art of tyrants.

Clearly, neither the digital nature of modern surveillance nor the expanded technology now available for both public and private use negate the inherent premise of the 4^th Amendment’s purpose: to require the executive branch of government to establish probable cause (pursuant to obtaining a legitimately issued warrant) to the judicial before it surveils the populace (or an individual).  To that end, this ruling upholds the notion that the Constitution is not a living document absent the amendment process.  It was laid down (mostly) on a basic foundation of ethical principle, and ethics are everlasting even if the environmental factors and circumstances change over time with an ever-evolving society.  Unfortunately, the Court failed to address the concept of “reasonable expectation of privacy,” saving that decision – as they are so often apt to do – for another day.

While United States v. Jones may have been the first 4^th Amendment case with modern technological implications at its heart to reach the Supreme Court, the elephant in the room still remains the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act.  Lower courts have already determined provisions of the so-called PATRIOT Act violate the 1^st and 4^th Amendments (among other constitutional aspects), yet it has not been taken up by the Supreme Court in its now decade-long existence.  If the Court fails to acknowledge an appeal by the government, or the government itself fails to make one, then the lower ruling stands – which means that current utilization of these provisions of the Act amount to criminal activity on the executive branch’s part (including the previous administration).

One thing is for certain: the Court cannot kick the can down the road indefinitely.  Either the justices will have to publicly acknowledge that Big Government trumps privacy rights in the 21^st century – effectively ending any legitimate notion of a “free” society and handing terrorists a major ideological victory – or they will have to actively or passively acknowledge that warrantless surveillance based on suspicion alone is antithetical to American (classic) liberal values and constitutional sovereignty.

Although this ruling only directly applies to tracking devices that police install on a person’s property such as a car, the justices were split on how the Fourth Amendment, protecting against unreasonable search and seizure, applies to high-tech tracking even though the decision was unanimous. Justice Antonin Scalia wrote the main opinion for the court, stating, “The government’s physical intrusion on the Jeep for the purpose of obtaining information constitutes a search.” Justice Scalia based this decision on the Fourth Amendment writing, “Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.” This opinion was shared by Justices Anthony Kennedy, Clarence Thomas, Sonia Sotomayor, and Chief Justice John Roberts.

In a concurring position, Justice Samuel Alito wrote that the case would be better served if it concerned the expectations of privacy: “The use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” He further went on to write: “We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.” Justice Alito’s opinions were shared with Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.

Five of the justices additionally suggested in concurring statements that a warrant might also be required for tracking done through cell phones or other devices already equipped with GPS capabilities.

The original article be read here.

The case, United States v. Jones, involved Mr. Antoine Jones, who was the owner of a Washington nightclub when the police came to suspect him of being part of a cocaine-selling operation.  They placed a tracking device on his Jeep Grand Cherokee without a valid warrant, tracked his movements for a month and used the evidence they gathered to convict him of conspiring to sell cocaine.  He was sentenced to life in prison.  The D.C. Court of Appeals overturned his conviction on appeal saying the sheer amount of information that had been collected violated Mr. Jones’ Fourth Amendment Right to Privacy against unreasonable searches. 

The Supreme Court held that the government’s installation of a G.P.S. device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority.  Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.   “It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information.  We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” 

Source:  The New York Times

The Supreme Court Mediates Between Constitutional Rights, Security, and Mechanical Surveillance

Law enforcement is increasingly utilizing man’s best friend: gadgets.

Everything from surveillance cameras to radar guns are common tools in the modern police arsenal.  With the advances in modern technology equipment such as GPS’s, global positioning systems, are increasingly used in the war on crime to track criminal and their transports.  These technological interventions are awakening questions about the legality of using these tools of Big Data for small, potential crimes.  The Supreme Court’s Case of United States v. Jones frames the grand struggle between historic, constitutional rights and security with the modern forces of Big Data and individual’s privacy.

What Is United States v. Jones?

In January 2008 Antione Jones was arrested on the charges of narcotics violations.  Issues arose with the conviction when his lawyer claimed that the police disregarded the Fourth Amendment during the investigation.  The police had used a GPS hidden on Jones’s car to track his movements  The Fourth Amendment protects American citizens from unreasonable searches and seizures or invasions of privacy; police are required to get a warrant for all significant investigations.  There was not a warrant for the GPS.

Were the Police Acting Illegally?

The police are not out of line, the law is just not up to date with the current technology.

There was a precedent for the GPS.  In 1983 the Supreme Court handed down a verdict on United States v. Knotts.  A warrantless radio beeper had been used by the police to track a barrel of chloroform, which was intended to be used for the production of illegal drugs, being transported by Knotts.  The Supreme Court upheld the decision, with the beeper’s evidence, to convict Knotts.  They ruled the police are empowered their abilities to use the latest technology to protect the country.

How is Jones Arguing His Case?

Jones’s case is built on the vast differences between an archaic beeper and a modern GPS.  A beeper plots one journey and had close police supervision.  The modern GPS pinged Jones’s location once every ten minutes for twenty-eight days.  The police obtained 4032 points of reference, but for the majority of the time they are attending to other duties as the data accumulated.

The Supreme Court is concerned that weakening the Fourth Amendment further, by allowing the warrantless use GPS and like technologies, could spell disaster in the Age of Big Data.  This is because GPS location will be common place in every device.  The possibilities for the future are a touch too Orwellian for their tastes; if police are not required to get warrants then every piece of technology could become a people tracker.

What Precisely is Big Data?

Big Data is an umbrella term for analysis and conclusions concerning of massive data sets, these can be everything from secondly GPS pings to every transaction on Wall Street.  Some of the pioneering Big Data studies have already created staggering results; one algorithm derived from Big Data could predict a cell phone user’s positions within a square mile ninety percent of the time.

The possibilities for future applications are endless.

What are the Implications Pertaining To Big Data of United States v. Jones?

If it is ruled that warrants are not needed big data may evolve into a tool of transparent tyranny.  Smart devices will fence in the frontiers of privacy because police and invested third parties will be able to track every step of everybody.  However, corporations and research institutes will more easily be able to use smart devices to explore the new frontier of Big Data and construct world-changing algorithms as fast as possible.

If the Supreme Court rules warrants are needed, which is the morally correct decision, and then our Fourth Amendment rights will be upheld at the expense of world-changing big data.  Invested third parties, searching to profit or learn from the Big Data we all produce, will find it increasingly hard to ascertain the statistics needed to make workable algorithms because the stronger Fourth Amendment will protect smart device users more broadly.   Big Data’s growth will be stunted because analysts simply will not have the data necessary to make quantitative decisions.

The decades of the twenty-first century will be named by the technologies dominating them; 2000-2009 will be the Age of the Internet and 2010-2019 will be the Age of Big Data.  Here, with United States v. Jones, the Supreme Court is adding their personal footnote for the future of America.

CA8 Opinion in Jones

And the briefs:

Jones Opening Brief

USA Brief in Jones

An excerpt:

Here, the district court did not procedurally err in considering Jones’s tribal convictions. The Guidelines specifically permit a district court to consider tribal court convictions for the purpose of determining the adequacy of a defendant’s criminal history, see U.S.S.G. § 4A1.3(a)(2)(A), and this court has consistently approved tribal convictions as a permissible basis for departing upward from the advisory Guidelines range. See, e.g.,United States v. Cook, 615 F.3d 891, 893 (8th Cir.2010);United States v. Harlan, 368 F.3d 870, 874-75 (8th Cir.2004).