Back in October, this blog discussed a case called United States v. Jones that was about to be heard by the United States Supreme Court. The question before the Court was where the Fourth Amendment draws a line between a valid search and seizure and one that violates the Constitution. In Jones, FBI agents and local police officers attached a hidden GPS system to a car belonging to Antoine Jones, whom they suspected of trafficking cocaine. They then used the GPS system to track Mr. Jones to a stash house, where he was later arrested. Since in past cases, like United States v. Karo, the Supreme Court found that certain tracking devices did not violate the Fourth Amendment, many wondered if the current Supreme Court Justices would erode the right to be "secure in [our] persons, houses, papers, and effects" even further.
As it turns out, the answer is no. The Supreme Court issued its decision on Monday, unanimously reversing the conviction of Mr. Jones for drug trafficking. All of the justices agreed that the conviction could not stand when the evidence was invalid -- the FBI and police installed the GPS device without the protection of a warrant, having waited too long (beyond the warrant's 10-day window) to install the device. However, the Justices differed on what overturning the conviction meant for Fourth Amendment protections. Five Justices supported the lead opinion, written by Justice Scalia, while four Justices supported Justice Alito's rationale.
Justice Scalia wrote that there was no doubt that the government "physically occupied private property for the purpose of obtaining information," which made the GPS tracking device a search within the meaning of the Fourth Amendment. This notion of unlawful search was based on the common law notion of trespass, as understood by the drafters of the Constitution, rather than the newer Katz v. United States rationale, which states a search is unlawful if it violates the suspect's reasonable expectation of privacy. Scalia argued that the Katz was an addition, not a substitute for, the common law trespass test.
Justice Sotomayor, in her concurrence, agreed with Justice Scalia's rationale and also added: "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." Sotomayor gave examples of disclosing your phone number when you text and phone, or an IP address when you surf the Internet. She doubted "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, or month, or year." However, their Constitutional protection could only be assured if the courts stopped treating secrecy as a prerequisite to privacy.
In his concurrence, Justice Alito argued that the Katz reasonable-expectation-of-privacy test should be used because there were no eighteenth century situations that could be compared to the technology of today's world. There did not need to be a physical trespass in order for violation of privacy to occur.
So what does it all mean? At the very least, it suggests a refreshing willingness on the Justices' part to put limits on police ability to gather evidence about potential suspects. Police believed that as long as a car was on public streets, there was nothing to prevent them from tracking the people inside. This view has now been shown to be invalid. That could be significant even at places like the Sierra Blanca checkpoint at the U.S.-Mexico border, because police could have used cell phone tracking and photos as a rationale to pull "suspicious" people over.
The question is whether from this point onward, the Scalia point of view -- that an unlawful search occurs when there is an actual physical violation -- becomes the dominant one, or the Alito view ultimately carries the day. The Alito view would allow for more privacy protection, since a device would not need to physically enter the suspect's space to violate the suspect's privacy. Criminal defense attorneys everywhere wait to find out.
