Does the government's installation of a Global-Positioning-System (GPS) tracking the device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitute a “search” within the meaning of the Fourth Amendment?
A recent United States Supreme Court Case, United States v. Antoine Jones, (2012), 132 S. Ct. 945 dealt with the following fact scenario :
In 2004 Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics. He was made the target of an investigation by a joint FBI and Metropolitan Police Dept. task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone.
Based in part on information gathered from these sources, in 2005 the government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. A warrant was issued, authorizing installation of the device in the District of Columbia and within 10 days.
On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a government computer. It relayed more than 2,000 pages of data over the four-week period.
The government ultimately obtained a multiple-count indictment, charging Jones and several alleged co-conspirators with conspiracy to distribute and possess, with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U.S.C. §§ 841 and 846. Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. 451 F.Supp.2d 71, 88 (2006). It held the remaining data admissible, because “ ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ” Ibid. (quoting United States v. Knotts, 460 U.S. 276, 281, 103 S.Ct. 1081, 75 L.Ed.2d 55 (1983)). Jones’s trial in October 2006 produced a hung jury on the conspiracy count.
In March 2007, a grand jury returned another indictment, charging Jones and others with the same conspiracy. The government introduced at trial the same GPS-derived locational data admitted in the first trial, which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of *949 cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.
The United States Court of Appeals for the District of Columbia Circuit reversed the conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment. United States v. Maynard, 615 F.3d 544 (2010). The D.C. Circuit denied the government’s petition for rehearing en banc, with four judges dissenting. 625 F.3d 766 (2010). The Supreme Court granted certiorari, 131 S.Ct. 3064, 180 L.Ed.2d 885 (2011).
Opinion of the Court
The Court held that the government’s attachment of the GPS device to the vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a search under the Fourth Amendment. Accordingly, GPS evidence so gained must be suppressed.
Justice Scalia delivered the opinion of the Court:
“The Fourth Amendment provides in relevant part that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment. United States v. Chadwick, 433 U.S. 1, 12, 97 S.Ct. 2476, 53 L.Ed.2d 538 (1977). We hold that the government’s installation of a GPS device on a target and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”
Justice Scalia went on to say:
“It is important to be clear about what occurred in this case: The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. Brower v. County of Inyo, 489 U.S. 593, 596, 109 S.Ct. 1378, 103 L.Ed.2d 628 (1989) (quoting Boyd v. United States, 116 U.S. 616, 626, 6 S.Ct. 524, 29 L.Ed. 746 (1886)).
In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis: “[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 he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.”
Justice Alito concurred in the decision:
“For such offenses, 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 single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.
“For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed.”
Mr. Kamionski has operated a successful solo law practice in Los Angeles for the past 10 years, representing individuals and companies on a variety of civil and criminal matters. He has litigated in federal and state courts in Californiaand serves on several appellate panels. He also practices in Washington, D.C., represemting clients on matters before the D.C. Circuit Court of Appeals. He is Of Counsel to Andrew Hale and Associates, the top police defense firm in Chicago, and maintains the firms presence in California. He may be contacted at mkamionski@yahoo.com
