Warrantless GPS Tracking Unconstitutional, Supreme Court Rules

01/23/2012 01:24 pm ET | Updated Jan 24, 2012

WASHINGTON -- The installation of a GPS tracking device onto a suspect's car constitutes a search -- and therefore could require a warrant -- the Supreme Court unanimously held on Monday morning. The justices, however, employed radically different rationales to come to their answer, leaving unsettled the question of how much protection one may expect from the Fourth Amendment in the digital age.

The case, United States v. Jones, arose from the Washington, D.C., police department's use of evidence gathered from Antoine Jones' car that tied him to a stash house in Maryland. A trial court convicted Jones and sentenced him to life in prison, but the U.S. Court of Appeals for the D.C. Circuit reversed, finding that the police's gathering of evidence after its warrant for the GPS tracking had expired violated the Fourth Amendment.

When Jones arrived at the Supreme Court, the justices faced the difficult question of how far the government can go in monitoring a person's movements in an age when modern technology may have eroded a person's reasonable expectation of privacy, which is the linchpin of modern Fourth Amendment case law.

But Justice Antonin Scalia, commanding five justices' votes, sidestepped the question altogether by resorting to the more narrow view of the Fourth Amendment that prevailed prior to 1967, when Katz v. United States introduced the "reasonable expectation of privacy" test.

"The text of the Fourth Amendment," wrote Scalia, "reflects its close connection to property, since otherwise it would have referred simply to 'the right of the people to be secure against unreasonable searches and seizures'; the phrase 'in their persons, houses, papers, and effects' would have been superfluous."

Because a vehicle is an "effect," Scalia wrote, the government committed a “physical intrusion [that] would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

Scalia was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor, but his reasoning met stiff opposition from Justice Samuel Alito, who wrote a separate concurrence on behalf of Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan.

Acting out a division exposed during oral argument in November, Alito called Scalia's decision to apply "18th-century tort law" to 21st-century technology "unwise."

"It is almost impossible to think of late-18th-century situations that are analogous to what took place in this case," wrote Alito. In a parenthetical that closely resembled his sarcastic attacks from the bench on Scalia's originalist jurisprudence, Alito wrote, "Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?" To do so, Alito answered in a footnote, "would have required either a gigantic coach, a very tiny constable, or both -- not to mention a constable with incredible fortitude and patience."

Snark aside, Alito mounted a vigorous defense of modern Fourth Amendment law, which decoupled itself from the old-fashioned trespass-based rule to protect more ethereal, but no less invasive, governmental intrusions on privacy -- including wiretapped phone conversations and, for at least the four members signing Alito's concurrence and one who joined Scalia, long-term GPS monitoring of one's vehicle.

In a solo concurrence, Justice Sotomayor defended her signing onto Scalia's conservative opinion by saying it was sufficient to decide the present case, but went on to enunciate a muscularly liberal Fourth Amendment vision for non-physical searches.

She suggested that the Court's rulings that a person "has no reasonable expectation of privacy in information voluntarily disclosed to third parties" were "ill suited to the digital age."

"People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers," Sotomayor wrote. "I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, month, or year."

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