The United States Supreme Court Rules that Certain GPS Surveillance Constitutes a Search under the Fourth Amendment
The United States Supreme Court’s decision in U.S. v. Jones, 132 S. Ct. 945 (2012), reveals deep fractures in the Court’s Fourth Amendment jurisprudence. Although all members of the Court upheld the D.C. Circuit’s decision that a Fourth Amendment search occurred under the facts presented, they split in their fundamental reasoning in reaching that conclusion. In sum:
- Justice Scalia, writing for the majority, concluded that a search occurred under the trespassory test, which only applies where a physical trespass is involved.
- Justice Alito, writing for four members of the court, completely rejected applying the trespassory test and instead applied the reasonable expectation of privacy test to conclude that a search occurred.
- Justice Sotomayor concurred with the majority’s application of the trespassory test. But she went a step further and suggested that the Court should reconsider certain fundamental aspects of its Fourth Amendment jurisprudence due to changes in the technological landscape.
Because the majority’s opinion was based on narrow grounds, its opinion will be unlikely to apply in the ever-increasing number of cases involving various forms of electronic surveillance, including – as Justices Alito and Sotomayor note – various forms of GPS surveillance that do not involve a physical trespass. This means that Justice Alito’s and Justice Sotomayor’s opinions may have a greater effect on lower court decisions going forward. Unfortunately, neither of those opinions presents bright-line rules for law enforcement or litigants. As a result, lower courts will be forced to grapple with ever more complex technological surveillance questions with limited guidance from the Court.
In Jones, the Government began investigating a nightclub owner because they suspected he was trafficking drugs. Id. at 948. The Government applied for and was granted a warrant that allowed it to install a GPS tracking device on the underside of a car registered to the nightclub owner’s wife. Id. But the Government failed to comply with the warrant’s requirements for installing the device, rendering the warrant invalid. Id. Despite these failures, the government installed the GPS device any way, using it over four weeks to gather evidence. Id.
The nightclub owner was eventually indicted. Id. He then moved to suppress the evidence gathered through the GPS device. Id. Although the district court suppressed some of the GPS evidence, the nightclub owner was convicted using other GPS evidence. Id. at 949. The D.C. Circuit reversed the conviction, finding all of the data from the GPS tracking device should have been suppressed because gathering that evidence without a warrant violated the Fourth Amendment. Id.
The majority opinion
The majority opinion concluded that a search subject to the Fourth Amendment occurred under the so-called trespassory test. Id. The trespassory test states that a search occurs where the “Government physically occupie[s] private property for the purpose of obtaining information.” Id.; see also id. at 951 n.5. This, the majority found, was exactly what the Government did when it placed the GPS device on the car. Id. at 949 – 50. And this action, the majority concluded, would undoubtedly “have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Id. at 949. Thus, when the Government trespasses on private property such as a car to attach a GPS device for the purpose of obtaining information, the Government will have conducted a search.
Although the majority applied the trespassory test in this case, it emphasized that it was not holding that the tresspassory test was the only test under the Fourth Amendment. Id. at 953. Rather, the majority found that the trespassory test, which had been the primary test for most of the country’s history, still applied, even to high-tech situations in the right circumstances. Id. The majority, however, reiterated that the test primarily used for the last forty-plus years – the “reasonable expectation of privacy” test derived from Justice Harlan’s concurring opinion in Katz v. United States, 389 U.S. 347 (1967) – still applied with full force. Id. at 953. In other words, a court should consider both tests when deciding whether a search occurred. Id.
Justice Alito’s opinion concurring in the judgment of the Court
Justice Alito concurred in the Court’s judgment but concluded that a search occurred on vastly different grounds. Instead of relying on the tresspassory test, a test he harshly criticized and described as “based on 18th-century tort law[,]” Justice Alito applied the “reasonable expectation of privacy” test exclusively. Id. at 957 – 58.
Applying the reasonable expectation of privacy test, Justice Alito found that the surveillance undertaken constituted a search, with his reasoning turning primarily on the length of the surveillance. He noted that in the “pre-computer age” a person was principally protected against intrusive surveillance by practical constraints – namely that surveillance was difficult to mount and expensive. Id. at 963 – 64. He thus concluded that a person may expect short-term surveillance of his movements on public streets, meaning short-term surveillance through a GPS device would not constitute a search. Id. at 964. But longer-term surveillance would constitute a search because “society’s expectation has been that law enforcement agents and others would not – and indeed, in the main, simply could not – secretly monitor and catalogue every movement of an individual’s car for a very long period.” Id. He declined to draw any absolute temporal line for when GPS monitoring became intrusive enough to constitute a search. Instead, he found that no matter where the line was drawn, “the line was surely crossed before the 4-week mark.” Id.
Although Justice Alito applied the reasonable expectation of privacy test, he acknowledged that that test had its own problems. Id. at 962. For instance, the test can be difficult to apply because it assumes that the hypothetical reasonable person “has a well-developed and stable set of privacy expectations.” Id. He keenly noted that changing technology may alter attitudes towards a reasonable person’s privacy expectations, meaning the hypothetical reasonable person may willingly tradeoff his or her privacy “for increased convenience or security.” Id. This fact, along with the fuzzy temporal limitations of the test, suggests lower courts will have wide latitude in applying the reasonable expectation of privacy test in non-trespassory cases going forward.
Justice Sotomayor’s concurring opinion
Justice Sotomayor joined the majority opinion, concluding that, at a minimum, a search occurs where the trespassory test is satisfied. Id. at 954. Justice Sotomayor, however, thought it important to discuss how the Fourth Amendment should be interpreted when the trespassory test did not apply. Id. at 954 – 55.
The trespassory test, she noted, would likely provide “little guidance” where the Government used “electronic or other modes of surveillance” that did not involve a physical trespass. Id. at 955. GPS surveillance, in particular, would increasingly be possible without any physical trespass, such as by electronically accessing GPS enabled smartphones. See id. And GPS surveillance, she noted, raises specific – and alarming – concerns because it “generates a precise, comprehensive record of a person’s public movements[,]” that could reveal “a wealth of detail about [a person’s] familial, political, professional, religious and sexual associations.” Id. Once gathered, this information could potentially be used to “chill associational and expressive freedoms” and lead to government abuses. Id. at 956. Justice Sotomayor would thus consider these potential pitfalls when applying the reasonable expectation of privacy test to GPS surveillance. Id.
Justice Sotomayor – going a step further than any other justice – also looked beyond GPS surveillance to the broader issue of privacy in an increasingly technological world. Id. at 957. She suggested that given the rapid technological changes, the Court may need “to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Id. This fundamental change might be necessary because people must disclose much about themselves to effectively interact in the modern world. Thus, Justice Sotomayor rejected the idea that “information voluntarily disclosed . . . for a limited purpose” should automatically be “disentitled to Fourth Amendment protection.” Id.
Written by Zachary Neal, Senior Associate | Alston & Bird LLP