…and there was much (UNANIMOUS!) rejoicing:
The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.
But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.
Long story short, the government got a warrant to put a GPS tracker on Antoine Jones’ car, within the District of Columbia, within 10 days of the issuance of the warrant. The government, however, slapped the tracker on the car on day 11 (eyeroll), while the car was in Maryland (DUH); Jones eventually got charged with conspiracy to possess and distribute seriously irresponsible amounts of cocaine, in violation of federal law. Jones ended up getting life in prison, but through the spin and twirl of the appellate process, ended up with his case before the Supreme Court–United States v. Jones.
The result? Short version: Yes, sticking a tracking device on a piece of private property is a search. /whacks police on nose with newspaper
The majority’s opinion (the court was unanimous as to the result, but split on the reasoning) fell into line with the earlier, “protected places” approach to resolving 4th Amendment controversies, instead of the more modern “reasonable expectation of privacy” doctrine that was introduced in Katz v. United States, 389 U.S. 347 (1967).
Before Katz, the Supreme Court saw the 4th Amendment as protecting certain places–namely, private property owned by the person being searched. Their decisions didn’t touch on “privacy”; the approach was based on the idea that the right to be “secure in [your] persons, houses, papers, and effects” attaches to a property interest, a violation of which is analogous to common law trespass. In 1967, the Court decided Katz, which gives us this idea that the 4th Amendment applies to any government search or seizure that interferes with a person’s “reasonable expectation of privacy,” even if there was no interference with that person’s property. The Court famously stated, “the Fourth Amendment protects people, not places.”
In the opinion, Justice Scalia brought the Court back to its common law roots:
It is important to be clear about what occurred in this case: 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. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886)). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:
“[O]ur law holds the property of every man so sacred,
that no man can set his foot upon his neighbour’s close
without his leave; if he does he is a trespasser, though
he does no damage at all; if he will tread upon his
neighbour’s ground, he must justify it by law.” Entick,
supra, at 817.
The text of the Fourth Amendment 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.
Notice what Scalia did–he went back to a British case* that was leading precedent at the time of the drafting and adoption of the constitution, and used an original intent argument as a basis for his opinion.
I love this decision. I love that the Court went back to its archaic and unsexy roots. I appreciate their willingness to not travel down the “reasonable expectation” path when they didn’t need to. Staying true to form, I agree with Justice Scalia completely. The outrage and the controversy lies in the fact that the Government went outside their warrant, trespassed on this man’s private property, tracked his movements, and then had the audacity to argue that this wasn’t a search.
The majority rightfully accuses the concurrence with attempting to make Katz the exclusive test for situations like these; after all, Katz is important, but do we really need to go down that road? It’s such a simple concept-trespass. A violation of a right I fear the legal system has brushed aside in favor of sexier concepts like privacy. What happened to Jones was classic trespassory search–more than enough to cook the cops in their own stew given the application of a little classical jurisprudence. It doesn’t hold that because physical intrusion isn’t necessary to classify the intrusion as a search, we should abandon those more formal (and dare I say, sacred) protections provided to private property.
For me, at least, the common law protecting private property is the root of all privacy law. Why can’t the government traipse onto my yard and into my house? Because it’s mine. It’s my home. It’s my space. Not yours, Government. Why can’t the government intrude upon my privacy? Same logic, different bubble. There are definite privacy concerns when it comes to GPS monitoring, but there’s no reason to skip over the fundamental violation–in this case, trespassing on a private car–when that fundamental violation is staring you directly in the face.
You can read the opinion here.
Photo credit to ICanHasCheezburger.com.
Originally posted at Beyond Clause 8.