Did it ever occur to you that as you drive down the street you may very well be in a private place within the confines of your vehicle[1], but your vehicle is not a private place? What? Of course not, why would anyone ever think of something like that? Well, perhaps it’s time to think about it, Winston[2].
A couple of weeks ago, the United States Supreme Court heard oral arguments in United States v. Jones. Antoine Jones and Lawrence Maynard were business partners. In 2004, both were suspected of being involved in drug trafficking, so the FBI attached a Global Positioning System (GPS) to the Jeep that Jones drove – his wife’s. A federal judge had issued a warrant to attach the GPS to Jones’ vehicle, but the judge limited the warrant to the District of Columbia and for a specific ten-day period. FBI agents didn’t get around to installing the GPS device until the 11th day, and then they attached it to the Jeep while it was parked in a public parking lot in Maryland.
This case involves the question of 1) whether the warrantless use of a tracking device (GPS) on a vehicle to monitor its movements on public streets violates the Fourth Amendment[3], and 2) whether the government violated Jones’ Fourth Amendment rights by attaching the GPS tracking device to his vehicle without seeking a valid warrant and without his consent.
Not long ago, I blogged about another Fourth Amendment case before the Court, Florence v. Board of Chosen Freeholders. At that time, I had warned that the case “is not a slam dunk”. Neither is Jones’ case. It’s hard to believe that a law enforcement agency would be constitutionally safe to attach GPS devices to our vehicles, and this case may very well be the Court’s “the buck stops here.”
A 1983 Supreme Court decision held that a beeper attached to a car on a public street did not constitute a search because a “person traveling in an automobile on public thoroughfares [does not have a] reasonable expectation of privacy in his movements from one place to another.” In that case, the police attached a beeper device to a vehicle in order to follow the defendant to his drug lab. However, in the recent oral arguments, Chief Justice Roberts asked the government: “You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?”
The Big Court may be getting it. What would prevent the FBI from following Supreme Court Justices? That might be what Chief Justice Roberts had in mind when he questioned the government attorney.
Our Fourth Amendment has been eroding over the past two centuries as more and more exceptions are added to the warrant requirement by the Supreme Court. Some of the exceptions include “consent”, “plain view”, “exigent circumstances”, “search incident to arrest”, and several more. At some point the Court has to realize that the scales of justice are beginning to look off-center in favor of the government. I’m sure James Madison could never envision a GPS, much less an automobile, but he surely would have shaken his finger at the idea of his government making an exception under these circumstances.
By the way, any evidence obtained from the GPS while the Jeep Cherokee was parked in Jones’ garage, adjoining his residence, was suppressed.
[1] [1] State v. Lake, 476 N.W.2d 55 (Iowa 1991). http://scholar.google.com/scholar_case?case=16026845495549248629&q=%22State+v.+Lake%22&hl=en&as_sdt=4,16&as_vis=1
[2] Winston Smith worked for the Ministry of Truth in George Orwell’s 1949 novel “1984”.
[3] The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
An added brief on why this issue seems pretty hard for the “lay person” to figure: Streets are about the closest thing most people experience approximating founders’ notion of “public commons” – and with a certain expectation of freedom in movement; though “conditionally state-licensed” and privately owned transportation vehicles muddy things up a bit in this discussion about privacy rights and movement. And, to further muck things up, too many people, termed “homeless,” now use their licensed vehicles as domiciles – yielding a likely argument for privacy and protection from some types of monitoring. And, yet, again, the incidence of public cameras and “recognition” software allowing for monitored movements with aggregated data available to public officials …. I’ll stop, here, and wait pensively for the “high court” to lend their expert and decisive (or not) opinion – then see whether the explanation takes account of all the obstacles to certainty.