SCOTUS rules on GPS usage by law enforcement, finds practice to be a Fourth Amendment search

The Supreme Court ruled today in United States v. Jones (2012 U.S. LEXIS 1063) that installation and use of GPS by law enforcement to track a vehicle constitutes a search under the Fourth Amendment and requires a warrant if the search would otherwise be unreasonable. That part is unanimous. However, the majority's ruling is very narrow, finding the search occurred because of physical trespass rather than finding a violation of Jones's reasonable expectation of privacy. The Court did not determine the reasonableness of the search.

In Jones, law enforcement used a GPS device to track the defendant's vehicle over 28 days, producing "more than 2,000 pages of data." Jones was ultimately charged with crimes related to cocaine. At trial, he filed a motion to suppress evidence obtained by the device, which was denied in part. The DC Circuit reversed the conviction, finding the GPS device usage violated the Fourth Amendment.

In its analysis, the Court found that physically placing the device on Jones's vehicle was "a physical intrusion [that] would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted." Thus, the issue was not a Katz reasonable expectation of privacy question, but trespass. "The government physically occupied private property for the purpose of obtaining information." That seems to be a two-part test, requiring (1) physical occupation and (2) the purpose of obtaining information.

Justice Alito, in his concurring opinion joined by Ginsburg, Breyer, and Kagan, suggested the Court follow the reasonable expectation of privacy test. Finding the use to be a search and applying the test to these facts, Alito would find that tracking for 28 days was certainly unreasonable, though a shorter, more de minimis amount of time might very well have been reasonable. The majority opinion doesn't consider time at all because the reasonableness of the search was not an issue before the Court. Thus, the Jones opinion does not require a warrant in order to use GPS - it only requires it if the use is not reasonable. No line was drawn distinguishing reasonableness.

Justice Sotomayor, joining the majority but also writing a concurring opinion, suggested that reasonable expectation of privacy analysis should examine "whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on." The problem, as she explained, is that "[p]hysical intrusion is now unnecessary to many forms of surveillance." Sotomayor's opinion adopts the reasoning of both the majority and Alito. Thus, it would seem that even if the surveillance did not involve physical trespass, five votes on the Supreme Court would find that a search occurred.

This opinion changes precedent in three circuit courts insofar as they suggest that the use of a GPS device in tracking is not a search. The opinions are United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010); and United States v. Marquez, 605 F.3d 604 (8th Cir. 2010).

Others with much more knowledge and experience than myself have already written extensively on the Jones case today. See Professor Orin Kerr's posts here, here, here, and here. (Professor Kerr was cited throughout the Supreme Court's opinion). Read Lyle Denniston at SCOTUSblog here. For popular media, here are a few links with interesting commentary: NYT, The Atlantic, Wired, and Politico.