A Fourth Amendment for the modern age

The Supreme Court finds that the Fourth Amendment is implicated when the police stick a GPS device on your car without your consent. This significant case requires the Justices to apply the Fourth Amendment -- adopted in the 18th Century -- to the modern age.

The case is U.S. v. Jones, decided on January 23. This case got a lot of attention because it seems to strike everyone as too intrusive for the police to stick a GPS on your car without a warrant and without your knowledge. Of course, cases like this usually nail people on drug-trafficking charges, but the Fourth Amendment is often developed from cases involving people we would not touch with a 10-foot pole. The Court unanimously sides with Fourth Amendment principles here and rejects lower court cases that essentially allowed the police to damned well do what they wanted. What makes the case confusing for Court junkies is that all the Justices find that GPS monitoring is a search under Fourth Amendment, but a 5-4 split disagrees on the reasoning, with a lone concurrence from Justice Sotomayor. Also, informed commentary says that the Court did not in this case actually say the government needs a warrant for these searches, only that the installation of the GPS was a Fourth Amendment “search.” But my guess is that, to be on the safe side, the government will probably try to get a warrant next time it tries this on people, and the lower courts might now require a warrant in these cases.

Justice Scalia writes for five Justices (including the conservative block) in noting that Fourth Amendment cases draw from two separate theories: the trespass theory (taken from 18th Century England) and the "reasonable expectation of privacy" theory (taken from a 1967 Supreme Court ruling). Both theories are alive and well, Scalia says. Both could apply here, in that the police have to trespass on your private property to stick a GPS under your car and you also have a reasonable expectation that your private comings and goings around town (and God knows where else) will remain private without a warrant. For now, the five-vote majority sticks with the trespass theory.

In siding with the defendant in this case, Scalia threads the needle by distinguishing two older Supreme Court cases that allowed the police to monitor (without a warrant) a beeper placed in a container being transported by the defendant. Beepers were the electronic gizmos of the 1980s. In one of those cases, the beeper was placed in the container when it belonged to someone else, and the original owner consented to the surveillance. In the other case, while the beeper was placed in a container that the defendant transported all over the place, the information seized by the police -- the defendant's itinerary -- "had been voluntarily conveyed to the public" as he had driven on public roads. The defendant in that case had no reasonable expectation of privacy in his public travel. The GPS case is different from the beeper cases because it involves an old-fashioned trespass, prohibited by the Fourth Amendment.

Writing for the four Justices who sided with the Fourth Amendment for different reasons, Justice Alito (and three liberals) says that the "reasonable expectation of privacy" theory is much more persuasive than the trespass theory. Alito says that short-term surveillance might not violate the Fourth Amendment, but long-term surveillance from GPS monitoring does implicate that Amendment because your privacy interests are placed in greater jeopardy. The general public is going to like Alito's privacy-related reasoning better than Scalia's relatively archaic trespass reasoning. While no one wants the police to touch your car without consent, most people would shudder at the thought that the government would closely monitor all of your whereabouts for a lengthy period of time without your knowledge.

Finally, a word about Justice Sotomayor, who concurs in Scalia's opinion but writes separately by articulating the real-world concerns about extended governmental surveillance in a way that normal people can understand, and by suggesting that the Court reconsider its precedents that give the police greater leeway when its monitors property owned by someone else. She writes, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. ... This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. ... I for one doubt that 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." It's Justice Sotomayor who wants to bring the Fourth Amendment into the modern age.