In a rare victory for fans of the Fourth Amendment, the Supreme Court unanimously decided today that the police need to have a search warrant before they can place a GPS device on your car to track your movements, even if your car is parked on public property when the device is attached. The Obama Administration had argued that GPS devices are common tools of law enforcement and not unlike “beepers” that the court had allowed warrantless use of in a 1983 decision called United States v. Knotts. Surprisingly, even though the case in question involved a cocaine trafficker alleged to have moved 97 kilos and $850,000, the justices decided the Obama Administration’s position was wrong.
In this case (decision here) a nightclub owner named Jones was suspected of running cocaine. District of Columbia police ran surveillance on Jones and based on evidence, applied and received a warrant to place a GPS tracking device on Jones’ Jeep Grand Cherokee. The limit on that warrant was to place the device within ten days while the Jeep was parked in DC. Cops, however, placed the GPS on Jones’ Jeep on day 11 and while it was in nearby Maryland, not DC.
At trial, Jones moved to have the GPS data ruled inadmissable. The District Court, in large part, disagreed, ruling:
“‘[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 (1983)).
The Court of Appeals disagreed, saying the warrantless GPS tracking was a 4th Amendment violation. The Supreme Court agreed.
What I found surprising in the unanimous opinion, authored by Justice Scalia of all people, is that the court used the exact logic I used in 2010 when describing a horrible 2010 9th Circuit Court ruling in the case of Oregon’s Juan Pineda-Romero that approved the use of a warrantless GPS device placed on the man’s car while it was parked on his private property. In a fantasy time-machine scenario where I try to explain the 9th Circuit ruling to the Founding Fathers, I wrote:
It’s hard to explain, but imagine that everywhere you went, there was a government clerk going with you, cataloging every location you visit and every route you took to get there and every time of the day you went. Then imagine the government clerk never sleeps and is invisible and you can’t possibly detect him in any way. And that the government can assign that clerk to you without your knowledge and without a court determining that there’s a reasonable chance you’re breaking the law.
So imagine my glee when I read Justice Scalia’s footnote #3:
JUSTICE ALITO’s concurrence (hereinafter concurrence) doubts the wisdom of our approach because “it is almost impossible to think of late-18th-century situations that are analogous to what took place inthis case.”… But in fact it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements…. There is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled.