The Fourth Amendment: Is Technology Driving Jurisprudence?

On January 23rd 2012 the Supreme Court decided a seminal case concerning the relationship to new technologies and Fourth Amendment jurisprudence.

In United States v. Jones, __ U.S. ___ (2012), the Supreme Court decided whether the warrantless installation of a global positioning system device on the underside of a suspect’s car in order to track his movements was a search for Fourth Amendment purposes. The Court unanimously held that it was. Although all nine justices agreed with the result of the decision, the various justices’ analyses raise intriguing questions about the Court’s future jurisprudence when it is confronted, as it undoubtedly will be, with law enforcement’s use of new technologies to gather information against citizens suspected of engaging in criminal activity. This article will first review the Supreme Court’s decision in Jones and then consider how the Court might handle future Fourth Amendment issues that arise from advent of new technologies, such as police use of aviation drone technology.

A joint task force of the F.B.I. and the Metropolitan Police of the District of Columbia made Antoine Jones, a nightclub owner and operator, the target of a narcotics trafficking investigation. With information gathered from various sources, the government applied for a warrant authorizing the use of an electronic tracking device on a car known to be Mr. Jones’ primary vehicle. The warrant, however, only authorized the application of the device within the District of Columbia. Nevertheless, the investigating agents installed the device on Mr. Jones’ car in Maryland. Over a four-week period the device tracked Mr. Jones movements and showed that he drove to various stash houses and locations associated with drug trafficking in the course of the investigation.

Because the device was attached to Mr. Jones’ car in violation of the scope of the warrant, the government asserted that the use of the GPS device in this manner did not implicate the Fourth Amendment’s guarantee that all citizens would be free from unreasonable searches and seizures. The district court largely agreed, holding that “’[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’” 451 F.Supp. 2d 71, 88 (2009) quoting United States v. Knotts, 460 U.S. 276, 281 (1983). The United States Court of Appeals for the District of Columbia Circuit reversed the trial court finding that such use of a GPS device by law enforcement did violate the Fourth Amendment. The government sought review in the Supreme Court.

Justice Scalia delivered the opinion of the Court in a decision in which most of the conservative justices, namely, Roberts, Kennedy, Thomas joined. Justice Alito joined the liberal wing of the court writing a concurring opinion for himself, Ginsberg, Breyer and Kagan. Justice Sotomayor wrote her own concurring opinion.

Justice Scalia focused on the property aspects of the Fourth Amendment. True to form he begins his analysis by positing how the founding fathers would have disposed of this issue. He asserts, “We have no doubt that such a physical intrusion, (such as planting a GPS device on a vehicle), would have been within the meaning of the Fourth Amendment when it was adopted.” Slip Opinion, at 4. He relies on Entick v. Corrington, 95 Eng. Rep. 807 (C.P. 1765) in which it was stated:

“[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 his is a trespasser, though he does no damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.”

Confronted with the Fourth Amendment implications of a new technology such as a GPS device, Justice Scalia sought to make it abundantly clear that the Court was not engaged in “judicial legislation” when interpreting the Fourth Amendment’s application to the government’s intrusion by means of GPS device, and that its decision was well grounded in its inherit judicial authority.

It is precisely this reasoning that caused Justice Alito and liberal justices to feel compelled to write a separate concurring opinion. Justice Alto begins with the statement, “This case requires us to apply the fourth Amendment’s prohibition of unreasonable searches and seizure to a 21st century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movement . . . Ironically, the Court has chosen to decide this case based on 18th-century tort law. Slip Opinion, page 1 of Justice Alito’s concurring opinion. Justice Alito then pokes fun at Justice Scalia, debating whether Scalia’s analogy concerning a constable hiding under a carriage to track its movements is a plausible 18th Century version of the government conduct in this case. Id., at 3 n. 3.

In fairness to Justice Scalia he noted in his opinion that in Katz v. United States, 389 U.S. 347, 351 (1967), the Court held that the Fourth Amendment “protects people, not places,” and subsequent cases applied the analysis of Justice Harlan’s concurrence, that a violation of the Fourth Amendment occurs when the government breaches a person’s “reasonable expectation of privacy.” Slip Opinion, at 5. Justice Scalia, however, maintained that Katz did not erode the Fourth Amendment’s protection against government trespass, and he stressed that the Fourth Amendment protects against government incursions to property and against violations of a citizen’s reasonable expectation of privacy. Id.

Justice Alito on the other hand disagreed with Scalia’s interpretation of Katz and contended that Katz “did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation.” Slip Opinion, Page 5 of Justice Alito’s concurring opinion. He noted that in at least two opinions there is language in which the Court seemed to acknowledge that trespass based analysis of the Fourth Amendment had gone the way of the dodo bird. In United States v. Karo, 468 U.S. 705, 713 (1984), the Court stated, “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” (Emphasis added.) In Oliver v. United States, 466 U.S. 170, 183 (1984) the Court wrote:

The existence of a property right is but one element in determining whether expectations of privacy are legitimate. The premise that property interests control the right of the Government to search and seize has been discredited.

Slip Opinion, Page 5-6 of Justice Alito’s concurring opinion.

Whereas Justice Scalia did not think the question of whether a citizen has a reasonable expectation of privacy to be free from GPS surveillance is necessary to decide the case, Justice Alito wanted to make clear that such surveillance does violate one’s reasonable expectation of privacy. Justice Sotomayor wrote her separate concurring opinion to make clear that she thinks the Fourth Amendment protects both against the government trespass of property rights and against incursions into a citizen’s reasonable expectation of privacy, and that the thus installation of the GPS device without a warrant violates the Fourth Amendment for two separate reasons.

The opinions of the justices make clear that they are all aware that whether the installation of the GPS device is a violation of a reasonable expectation of privacy or a government trespass against property rights will impact the resolution of future cases in which technology and the Fourth Amendment intersect. Alito notes that if auto manufacturers installed a GPS device on all cars and made its tracking data available to the government, there would be no trespass and possibly no Fourth Amendment violation pursuant to Justice Scalia’s reasoning. Slip Opinion, Page 8 of Justice Alito’s concurring opinion. Likewise, if the government just subjected an individual to extensive surveillance so that all of the individual movements were tracked based on visual observation there would also be no Fourth Amendment violation. Id. He noted that in some locations closed-circuit televisions are ubiquitous and could track an individual’s motions in a manner similar to that of a GPS device, and that “smart phones” are equipped with a GPS device that would also permit similar tracking without a trespass on property occurring. Id., at 11.

In response Scalia wrote, “it may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.” Slip Opinion, at 11.

In any event, there is little for a civil libertarian not to love in this case. First, it is a rare unanimous opinion finding a Fourth Amendment violation. Not only is the decision unanimous, but the disagreement among the judges is along the lines of whether the Fourth Amendment violates both property rights and privacy rights, and all the justices agree that the intrusion in Jones violates one of those rights, if not both of those rights. Although Justice Alito and most of the liberal judges on the Court believed the Fourth Amendment protects only privacy rights, Justice Alito suggested that intrusive electronic surveillance, such as that made available by means of ubiquitous security camera may violate the Fourth Amendment. This is a far cry from the rumblings from a plurality of the Court just a few years ago in Hudson v. Michigan that the exclusionary rule may have outlived its usefulness. See Waiting for the Other Shoe: Hudson and the Precarious State of Mapp, Moran, David A.

Most likely Justice Scalia’s focus on property rights has as much to do with limiting the doctrine of reasonable expectation of privacy as it does with adhering to notions of the original intent of the framers. It seems likely that he and some of the conservative justices fear that the reasonable expectation of privacy test could eventually result in such things as government use of warrantless 24/7 electronic surveillance as being declared to be in violation of the Fourth Amendment in the age of terrorism. Nevertheless the exciting news for civil libertarians is that no justice voted to abrogate the exclusionary rule or the reasonable expectation of privacy test. Moreover, five justices openly expressed their sympathy to the idea that such pervasive surveillance would violate the Fourth Amendment.

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.