by Lauren Gailey, Staff Writer
A year ago last week, the U.S. Supreme Court handed down an opinion addressing an issue that has become increasingly common in today’s technologically advanced society: is law enforcement’s use of a GPS tracking device to surveil a suspect a “search” protected by the Fourth Amendment? In United States v. Jones, decided on January 23, 2012, the Court answered that question with a “yes” – seemingly settling the question. The aftermath of the Jones decision, however, has been anything but settled.
Interestingly,
when faced with such advanced technology, Justice Antonin Scalia and the
majority adopted an approach that was anything but novel. Since the Katz decision in the 1960s,
the Court had determined whether law enforcement’s actions were a search
subject to Fourth Amendment protection by asking whether the person being
surveilled had a “reasonable expectation of privacy” in his or her behavior. In Jones, however, the Court returned
to the pre-Katz approach, which was based on the concept of
trespass. The Court held that the
agents’ placement of the GPS was a Fourth Amendment search because law
enforcement agents did not have a warrant when they trespassed on the suspect’s
vehicle by attaching the GPS device, which they then used to surveil him.
“Ironically,”
Justice Samuel Alito quipped in his scathing concurrence, “the Court has chosen
to decide this case based on 18th-century tort law.” Justice Alito predicted that, because Jones’
holding was rooted in property concepts, it would “present particularly vexing
problems” when applied to electronic surveillance.
Now that the law
enforcement agencies have had time to adjust to the new legal landscape,
however, the extent of the limitations on their use of technologies like GPS
tracking has become much less clear.
According to the American Civil Liberties Union’s website, the
Department of Justice has prepared internal memoranda about the applicability
of Jones to the investigative process, but released heavily redacted
versions in response to the ACLU’s disclosure request. Last month, the DOJ refused to release the
unredacted memoranda, and the ACLU has said that it will ask the court to order
the DOJ to do so under the Freedom of Information Act.
A year ago last week, the U.S. Supreme Court handed down an opinion addressing an issue that has become increasingly common in today’s technologically advanced society: is law enforcement’s use of a GPS tracking device to surveil a suspect a “search” protected by the Fourth Amendment? In United States v. Jones, decided on January 23, 2012, the Court answered that question with a “yes” – seemingly settling the question. The aftermath of the Jones decision, however, has been anything but settled.
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| © Smithsonian National Air & Space Museum |
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| © Smithsonian National Air & Space Museum |
In the year
since Jones was decided, the federal district and circuit courts have
been confronted with many of these electronic surveillance decisions – and,
based on those cases, Justice Alito’s prediction appears to have been
correct. The federal courts’ handling of
Jones has varied widely, perhaps due to the many important questions
left open by the Court. For example,
whether the Jones framework applies at all outside the GPS-tracking
arena is unclear, and most courts that have taken up that question – including
the first Circuit to do so, the Sixth, in a cell phone surveillance case – have
sidestepped Jones and applied the old Katz test instead.
Interestingly,
although Justice Scalia said otherwise in the majority opinion, the decision
has seemingly called the continued validity of the Katz test into
question entirely in this context. Where
the federal courts continue to use it, many apply Katz in lieu of Jones
where the facts permit. Others attempt
to apply both tests simultaneously, and still others use Katz as a
“fall-back” where the surveillance at issue is found not to be a Fourth Amendment
search under Jones.
The Court also
did not answer the question of whether any exceptions to the Fourth Amendment’s
warrant requirement apply to GPS “searches.”
Many of the lower courts have, in absence of any direction, permitted
exceptions such as agents’ good-faith reliance on binding and, in some cases,
non-binding appellate precedent.
Clearly, the federal courts’ approaches to the Jones decision
have been heavily fragmented, and the state courts that have been faced with
electronic surveillance cases have experienced similar problems.
The
unfortunate coincidence is that, given the game-changing significance of the Jones
decision for law enforcement, legal uniformity and certainty would seem to be
all the more critical. Former FBI counterterrorism official Ray Mey
explained to USA Today that, due to the limitations of vehicle
surveillance, the attachment of GPS devices to suspects’ vehicles “is one of
the only ways to pinpoint the locations of suspects.” In the immediate aftermath of Jones,
the FBI seemed to adopt a “better-safe-than-sorry” approach to GPS
tracking. In fact, FBI General Counsel
Andrew Weissman told a Wall Street Journal blogger in February of last year
that the agency had shut off 3,000 of its devices that were in use at the time the
Jones decision came down.
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| © ACLU.org |
Despite the legal uncertainty that has
followed Jones’ interpretation of the Fourth Amendment, what is certain
is that warrantless GPS tracking by law enforcement has earned its share of
detractors on the federal bench.
Dissenting in a pre-Jones case that ruled a similar use of
warrantless GPS tracking constitutional, Judge Diane Wood of the Seventh
Circuit stated that such searches “make the system that George Orwell
depicted in his famous novel, 1984, seem clumsy and easily avoidable
by comparison.”
[Read the full text of the Jones
decision here.]
Lauren Gailey is a second-year
student who has studied at Georgetown University and the University of
Pittsburgh, where she earned bachelor’s degrees in Marketing and Communication
and Rhetoric. Lauren has interned in the
Office of the United States Attorney for the Western District of
Pennsylvania. Before law school, she
worked as a producer of a cable television news-talk show.
