The Supreme Court’s Application of the Fourth Amendment to Privacy Concerns Raised by New Technologies Over the Last Century

In Olmstead v. United States, 277 U.S. 438 (1928), the Court found the Fourth Amendment did not apply to wiretaps because “[t]he taps from house lines were made in the streets near the houses,” rather than in the houses themselves, employing a strict property bases Fourth Amendment analysis.

Likewise, in Goldman v. United States, 316 U.S. 129, 135 (1942), the Court concluded no search occurred when a “detectaphone” was placed on the outer wall of a defendant’s office for the purpose of overhearing conversations within the room.

These cases have long since been considered overruled implicitly by the reasonable expectation of privacy test established by the Court in Katz v. United States, 389 U.S. 347, 351 (1967). See e.g., Rakas v. Illinois, 439 U.S. 128, 143 (1978). In United States v. Knotts, 460 U.S 276, 281 (1983) the Court held that the government did not violate the Fourth Amendment by the warrantless placement of a tracking device in a container of chloroform, allowing law enforcement to monitor the location of the container. In United States v. Karo, 468 U.S. 705 (1984), the government installed a similar tracking device in a container and addressed a question that was not raised by the parties in Knotts, namely, whether the installation of the device violated the Fourth Amendment. The Court also upheld that search because when the device was installed into the container it was not yet in possession of the defendant. Id., at 712.

The Court’s decision in United States v. Jones, __ U.S. ___ (2012), however, is the first case in which the Court explicitly considered the future implications of new technologies and the Fourth Amendment and seems to craft its opinions with an eye towards the implications of these technological developments. Unfortunately the split in decisions in Jones tells us little about the Court’s future course when it is confronted with the Fourth Amendment implications of new technologies in the coming years. Will Jones be a forerunner of a series of opinions curtailing the government’s use of such privacy invading technologies, or will the Jones be considered an “outlier” case limited to its unusual facts involving a physical trespass on property? Obviously, the outcome may largely be dependant on the results on the next few presidential election cycles or heightened public fears resulting from a future terroristic attack or crime wave.

Mick Mickelsen is a nationally recognized criminal trial attorney with more than 30 years of experience defending people charged with white-collar crimes, drug offenses, sex crimes, murder, and other serious state and federal offenses.