Same Results; Different Reasoning

Last November, I wrote a blog about how the Fourth Amendment is losing its meaning.   One of the examples I had used was the case of United States v. Jones.  The facts of the case are as follows:   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 11^th 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, 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.  At the time of the posting, the United States Supreme Court was hearing oral arguments.

On January 23, the Court handed down its decision.  Yes, “the Government physically occupied private proper­ty for the purpose of obtaining information. [The Court has] no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.”  Justice Scalia, the self-appointed historian of the Bench, went on to justify the decision by using case law on trespass as old as the country.  But Justice Stotomayor explained it best in her concurrence:  “[T]he Gov­ernment installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones’ Jeep without a valid warrant and without Jones’ consent, then used that device to monitor the Jeep’s movements over the course of four weeks. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection.”

Stotomayor used a different reasoning than Scalia to come to the same conclusion.  Citing People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009), she noted that the GPS will go far beyond providing the government with information that will use as evidence; it will also include “(‘trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meet­ing, the mosque, synagogue or church, the gay bar and on and on’)”.  Justice Stotomayor pointed out that she “would also consider the appropriateness of entrusting to the Executive, in the absence of any over­sight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance.”  We can agree with that!

Both the majority and Stotomayor criticized Justice Alito’s concurrence.  Alito’s opinion was well-thought out and brought technology into the frame of the argument.  However, he lost me also when he began to compare this situation with tort law and then suggested that this matter be taken up by Congress and the states.  “A legislative body is well situ­ated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a com­prehensive way.”  That statement makes me think that Justice Alito doesn’t see the magnitude of the Fourth Amendment violation.  I’ve seen legislative bodies attempt to comply with constitutional questions.  It isn’t pretty.

In any case (no pun intended), the Court came to correct conclusion.  We can sigh a bit, smile, and know that some fragment of the Fourth Amendment remains – for now.