United States v. Jones

On December 23, 2012, the Supreme Court released its much-anticipated opinion in United States v. Jones. The Court unanimously found that the FBI’s use of 24/7 GPS tracking for 28 days was a search under the Fourth Amendment, and therefore upheld the D.C. Circuit.

Walter Dellinger, a former Acting Solicitor General who was on-brief for the defendant,
Jones, called the Court’s decision in Jones “a signal event in Fourth Amendment history.”
It was “a great day for the Fourth Amendment,” added Stephan Leckar, who gave the oral argument on behalf of Jones. And Stephen Shapiro, who wrote an amicus brief for the ACLU, called the case “an important victory for privacy.”

But before fans of greater privacy rights start
celebrating, they should take a look at what the Court actually held. Although the Court ruled unanimously for Jones, it split 5-4 on a critical question of Fourth Amendment jurisprudence.

First, the facts – Antoine Jones was the owner of a D.C. nightclub when police suspected
that he was engaged in a narcotics operation. To ascertain details about Jones’s behavior, law enforcement obtained a warrant to place a GPS tracking device on Jones’s Jeep. They then
installed the device on the underside of the car one day after the warrant had expired. After
monitoring Jones’s whereabouts for nearly a month, law enforcement had enough evidence to convict Jones.

The D.C. Circuit overturned Jones’s conviction. In doing so, it espoused what became known as the “mosaic theory,” which states that although the Supreme Court has held that it is not a search when police briefly track a suspect using sense-enhancing technology—with a beeper, perhaps, as in United States v. Knotts—extended use of this technology violates privacy because it paints the police a vivid picture of the suspect’s life. For example, a month-
long digital surveillance could reveal a pattern of intimate details, such as an individual’s trip to an abortion clinic, a mosque, or a Jonas Brothers concert. GPS tracking permits police to draw conclusions that otherwise would be impossible to garner from one or two days’ worth of surveillance.

The Court granted certiorari, and oral arguments were heard on November 8, 2011.

As anyone who has completed a full year of law school knows, courts apply the Katz reasonable expectation of privacy test to determine whether a search has occurred. However, Justice Scalia, writing for the majority, applied a different test, based on trespass and an originalist understanding of the Fourth Amendment. He found that, in the Framing era, the government’s physical intrusion onto private property constituted a search. Because the FBI had trespassed on Jones’s car by placing the GPS device on it, and because the result of the trespass was the transmission of data about Jones’s whereabouts, the activity was a search. The opinion did not decide whether the search was reasonable or not.

Justice Alito wrote a concurring opinion, joined by Justices Ginsburg, Breyer, and Kagan. Although he agreed with the Court’s ultimate conclusion that the extended GPS tracking was a search, he disagreed with Scalia’s trespass approach. Instead, Alito found that the police activity violated Jones’s reasonable expectation of privacy that police would not constantly monitor his whereabouts. This approach was similar to the D.C. Circuit’s mosaic theory because it relied on the aggregation of data.

The most curious opinion was Justice Sotomayor’s concurrence. Sotomayor joined the majority opinion because she agreed that the case should be decided on the narrowest possible grounds. However, her concurrence is all about the evolving nature of technology and the privacy-dangers that modern technology poses. Sotomayor strongly indicated that, as a result of these concerns, she would side with the Alito concurrence in a future case deciding the Katz question. Sotomayor went so far as to suggest that the third-party doctrine should be eliminated.

And so although Jones is being touted as a major victory for privacy rights, it leaves quite a bit to be desired. For example, the Court’s narrow holding on trespass will not cover the types of privacy invasions that we can expect to see in the near future – GPS monitoring of smart phones and government cooperation with built-in GPS navigation system providers. Because these activities do not involve a physical intrusion by the government, trespass doctrine won’t cover them. But on the bright side, it appears that there are five votes to stop this type of surveillance in the next challenge that goes before the Court.

It is also worth noting that, contrary to what many in the media have reported, the Jones decision does not mean that police must obtain a warrant before bugging your car. It is not enough that extended GPS tracking is a search – the Fourth Amendment requires that it be an unreasonable search. Justice Scalia rejected the government’s argument that the search was reasonable, not on the merits, but because the government had waived the argument by failing to raise it below. The validity of the conduct in Jones is therefore a lingering question to be resolved by a different case.

In the meantime, you’ll simply have to start checking the undercarriage of your car before embarking on a month’s worth of criminal behavior. You can bet that Antoine Jones sure will.