Whether law enforcement’s installation and use of a GPS tracking device to continuously monitor a person’s vehicle movements for an extended period of time violates that person’s Fourth Amendment right to be free of unreasonable or warrantless searches and seizures.
FBI agents installed a Global Positioning System (“GPS”) tracking device on Antoine Jones’s vehicle as part of a drug trafficking investigation. The United States used the locational data from the GPS in a federal trial that resulted in Jones’s conviction for conspiracy. The Court of Appeals for the District of Columbia Circuit reversed that conviction, holding that the agents needed a warrant before installing the GPS. The United States argues that a warrant was unnecessary because Jones had no reasonable expectation of privacy in his movements in public and was never deprived use of his Jeep. Jones responds that he has a privacy interest in the aggregation of his movements over a prolonged period and that the aggregation of such information interferes with his use of the Jeep. The Supreme Court’s decision will affect how police employ new technologies to reduce the manpower and cost required for criminal investigations. The Court’s decision will also consider how citizens can protect themselves from government officials’ possible abuse of new technologies, particularly where misuse threatens fundamental privacy rights.
Questions as Framed for the Court by the Parties
Whether the warrantless use of a tracking device on respondent's vehicle to monitor its movements on public streets violated the Fourth Amendment.
In addition to the question presented by the petition, the parties are directed to brief and argue the following question: “whether the government violated respondent's fourth amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”
In 2004, the Federal Bureau of Investigation (“FBI”) launched an investigation on two business partners, Antoine Jones and Lawrence Maynard, for possible drug trafficking. See United States v. Maynard, 615 F.3d 544, 549 (D.C. Cir. 2010). As part of the investigation, a federal judge in the District of Columbia approved a warrant authorizing the FBI agents to install a Global Positioning System (“GPS”) tracking device on a Jeep that Jones routinely used. See Brief for Petitioner, United States of America at 3. While the warrant granted the agents permission to install the GPS device within ten days and only within the District of Columbia, the agents did not install the GPS until eleven days later in a public parking lot in Maryland. See id.
The GPS device relayed information to the FBI regarding the Jeep’s movements during the entire period the GPS was on the Jeep. See Antoine Jones 3–4. Based on the GPS data provided by the device, FBI agents detected a pattern of repeated trips to a suspected stash house, a building used for storing drugs. See id. at 5. Combined with other visual surveillance, FBI agents confirmed that Jones drove the Jeep during these trips. See BriefforPetitioner at 4. Agents later obtained and executed search warrants on the Jeep and the stash house, finding approximately $850,000 in cash, firearms, ninety-seven kilograms of cocaine, and one kilogram of crack cocaine, among other items. See id. at 4–5. FBI agents arrested Jones and Maynard in October 2005. See Maynard, 615 F.3d at 549.
Beginning in October 2006, the United States prosecuted Jones in the United States District Court for the District of Columbia (“District Court”), where the jury acquitted Jones on a number of counts and did not reach a verdict on the final count of conspiracy. See Maynard, 615 F.3d at 549. In March 2007, the United States charged Jones and Maynard with the single conspiracy count. See id. During the second trial, Jones challenged the admissibility of the GPS tracking evidence arguing it was an unreasonable search and seizure. See at 5. The District Court excluded some GPS data gathered from private areas for lack of a warrant, but allowed the rest of the GPS data because it came from public areas. See at 5–6. The second trial ended in January 2008 with the jury finding both Maynard and Jones guilty of conspiracy. See , 615 F.3d at 549. They appealed their convictions to the United States Court of Appeals for the District of Columbia Circuit (“D.C. Circuit”), where Jones again challenged the GPS tracking data as violating his Fourth Amendment rights against unreasonable search and seizure. See id. at 555–56. A three-judge panel on the D.C. Circuit upheld Maynard’s conviction, but overturned Jones’s conviction holding that the GPS evidence violated Jones’s Fourth Amendment rights. See id. at 568. The United States appealed the panel’s decision, requesting an en banc hearing before the whole D.C. Circuit. See United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010). The D.C. Circuit denied the United States’ request. See id. The Supreme Court granted the United States’ petition for certiorari on June 6, 2011. See United States v. Jones, 131 S. Ct. 3064.
The forbids warrantless or unreasonable governmental intrusions upon a person’s righttoprivacy. When faced with an alleged Fourth Amendment violation, the Supreme Court must first examine the subjective personal and societal expectations of privacy associated with the government action in order to determine whether an unreasonable search or seizure has occurred. See Smith v. Maryland, 442 U.S. 735, 740 (1979). If the Court finds either a search or seizure, it will then decide whether the specific circumstances allow for an exception to the Fourth Amendment warrant requirement. See Terry v. Ohio, 392 U.S. 1 (1968). The United States argues that no illegal search or seizure occurred here because Jones did not have a reasonable expectation of privacy when driving in public and did not lose possessory rights over his vehicle. See Brief for Petitioner at 17–18. In opposition, Jones objects to the United States’ formulation of what constitutes a reasonable expectation of privacy and contends that the installation of the GPS device interfered with his possessory interest in his vehicle. See Brief for Respondent at 14, 45–46.
GPS Tracking as a Fourth Amendment Search
Relying on the Supreme Court’s Katz decision, the United States asserts that Jones could not have a reasonable expectation of privacy while driving on public roads. See Brief for Petitioner at 17–18. In Katz, the Supreme Court found that individuals cannot have a reasonable expectation of privacy while engaging in activities within the public sphere. See Katz v. United States, 389 U.S. 347, 351 (1967). The United States argues that, according to Katz and its progeny, all actions performed in public are subject to scrutiny, even if it is unlikely that any one person would witness all of the activities—as long as the particular activities could have been tracked by the lay observer, a reasonable expectation of privacy cannot exist. See Brief for Petitioner at 22–24. The government maintains that since Jones traveled on public roads to reach his stash house, he could not have had a reasonable expectation of privacy when going to and from the house because any passerby could have observed his actions. See id. at 37–38. Although the stash house may not be in a public area, the United States notes that a passerby could still have viewed Jones’s repeated visits to the house via the public roads. See id. Finally, the government adds that the use of a visual aid, such as a GPS device, does not matter because the legal emphasis should be placed on whether the target moved in a public space. See id.
In opposition, Jones contends that the United States misconstrued the language in Katz by omitting key portions of the opinion. See Brief for Respondent at 34–35. He argues that the missing text explains that if an individual reasonably wishes to keep private certain actions performed in the public sphere, the privacy of those actions may be constitutionally protected. See id. at 33–34. Given this language, Jones asserts that the appropriate test does not only look to whether an action occurs in public, but examines the reasonableness of the means of observing those actions. See id. at 31–32. He explains that even if certain actions happen in public, there may still be a socially accepted expectation of privacy as to the actions themselves and the means of capturing information about them. See id. at 34–35. Due to the uniquely intrusive nature of prolonged GPS tracking, Jones concludes that he retained a reasonable expectation of privacy against this specific means of observation. See id. at 16. In addition, he contends that although a person’s routes on public roads may be observed by the naked eye, continuous GPS tracking allows law enforcement to capture entire patterns of movement—a feat likely unachievable by a random passerby. See id. at 43–44. Thus, Jones concludes that he reasonably held an expectation of privacy as to the entirety of his movements, and that the status of being in public cannot determine what are reasonable and socially acceptable expectations of privacy. See id.
GPS Device Installation and Use as a Fourth Amendment Seizure
Jones first contends that the GPS device’s installation constituted a seizure because it materially interfered with his possessory interest in the vehicle, intruding upon his fundamental right to exclude others from using his property. See Brief for Respondent at 46–49. Further, he points out that no existing precedent accommodates the stealth installation of tracking devices on individuals’ cars because such intrusion represents a sort of “infection” on the property. See id. at 49. Jones distinguishes other tracking methods, such as an “X” chalked on a vehicle, by pointing out that it is not the intrusion itself but its nature that determines when innocent tracking becomes an unconstitutional seizure. See id. at 51–52. He further argues that both the recording and storage of GPS data constitute a seizure because those actions memorialize private information. See id. at 54. Jones concludes that after the police officers installed the device, all further operation of the tracker, including data collection, was an illegal seizure. See id. at 53–54.
In response, the United States argues that there was no seizure when the FBI agents installed the device because the agents did not interfere with Jones’s right of possession of the vehicle. See Brief for Petitioner at 39. First, the government explains that no privacy barrier shields the exterior of a vehicle because of its public nature. See id. at 39–40. The United States argues that the mere attachment of the device did not convey any information that Jones wished to keep secret, and the potential to convey information does not make installation itself a search or seizure. See id. at 41–42. The government next contends that the attachment did not meaningfully interfere with Jones’s use of his vehicle, as Jones does not claim any actual interference or danger stemming from the GPS device, and therefore the device did not affect any possessory interest. See id. at 42–43, 45–46. Ultimately, the United States asserts that if the GPS installation’s “infectious” nature only violated theoretical possessory interests, Jones’s claim of property interference cannot be sustained. See id. at 45–46.
Alternatively, the government argues that even if the Court finds a search or seizure, a reasonableness test demonstrates that a warrant exception should apply. See Brief for Petitioner at 47–48. The United States contends that after considering all of the circumstances surrounding the GPS’ installation and use, the need for such use greatly exceeded any privacy rights affected. See id. at 49–50. The government notes that while the only information conveyed was regarding Jones’s location, law enforcement greatly benefited from the data. See id.
Jones disagrees, stating that the Fourth Amendment demands more than a simple balancing test. See Brief for Respondent at 56–57. Jones argues that the warrant requirement checks the power of law enforcement, and that the Court has created special exceptions only for exceptional cases. See id. at 59. After listing such exceptional cases, Jones points out that no special circumstances aside from law enforcement facilitation exist here. See id. In addition, Jones asserts that even with a balancing test, the incredibly intrusive and continuous nature of GPS tracking tips the scales in favor of requiring a warrant. See id. at 58.
The dispute in this case revolves around whether police must obtain a warrant before installing a GPS tracking device on a private vehicle located in a public place. The Supreme Court's decision could affect the availability of cost-effective technologies in police investigations and private citizens’ .
Availability of Technology to Police
The United States points out that the efficiency of police investigations increases with the availability of advanced technology. See Brief for Petitioner at 18. The CenterontheAdministrationofCriminalLaw (“CACL”) stresses the importance of access to these cost-effective devices for police departments because the GPS devices enable investigations using fewer personnel and less money, allowing police to allocate resources to other areas of crime control. See BriefofAmicusCuriaeCACL in Support of Petitioner at 10–13. Further, the United States asserts that the best use of new technologies, like GPS devices, is to collect data to show probable cause necessary to obtain a search warrant, and that requiring a warrant to use the technology would defeat that purpose. See BriefforPetitioner at 50.
Jones responds that requiring a warrant before installing GPS devices does not impede police departments from vigorously investigating suspected crimes using the most effective technologies. See Brief for Respondent at 14–15. He states the warrant requirement merely ensures that an impartial has weighed the technology’s use against the concerns of possible misuse and determined that the use of the technology is justified. See id. Additionally, Jones argues that cost will not provide a proper constraint on overuse of the GPS technology because the cost of tracking someone is very low. See id. at 24–26. Further, Jones contends that a GPS device does change the character of information relating to a person’s public location because the device aggregates a vast amount of accurate locational information, creating a more detailed picture of the person’s activities than is available by ordinary visual surveillance. See id. at 28–29.
Potential for Abuse and Elimination of Privacy
The United States asserts that this case does not involve official abuse or widespread mass surveillance and that there is no evidence of such activities relating to GPS use. See Brief for Petitioner at 33–35. Further, the government argues that requiring a warrant because of an unrealized potential for misuse could cast doubt on all investigative techniques if they happen to uncover a pattern of behavior. See id. at 32-33. The United States asserts that concerns regarding the potential for abuse or misuse of patterns gleaned from GPS data are also present in other police investigation techniques that the Supreme Court has held not to be searches under the Fourth Amendment, such as extended stakeouts or repeated trash collection. See id. Additionally, the government cites examples of Congress’ limiting police use of other non-invasive investigation techniques in order to demonstrate that the legislative process, not court action, is the best method for alleviating concerns of abuse or misuse of new technologies in police investigations. See id. at 35-36.
Jones fears that allowing the installation of GPS devices without a warrant would lead to widespread collection of personal data unrelated to any crime, due to the prevalence of GPS devices and their automated nature after installation. See Brief for Respondent at 25–26. Several privacy organizations contend that government officials can collect and consolidate the GPS devices’ location data into massive databases for later analysis of more than just historical travel logs. See Brief of Amici Curiae the Electronic Privacy Information Center, et al. in Support of Respondent at 17–18; in Support of Respondent at 19–20. Jones argues that unconstrained use of GPS data would greatly impede citizens’ ability to associate with others for fear that some government official may aggregate their public movements to investigate their private relationships. See Brief for Respondent at 26–27. The Council on American Islamic Relations (“CAIR”) asserts that minority groups would bear most of these effects, particularly Muslim-Americans who fear investigations solely because they attend the same mosque as a suspected terrorist. See at 14–16.
In this case, the Supreme Court will determine how and when law enforcement agents may use ever-advancing technology to improve investigative work and reduce its cost. The decision will affect how and when citizens can guard against unwanted governmental intrusions aided by enhanced technology. Jones argues that he had a reasonable expectation of privacy from governmental monitoring of his movements in the aggregate and that the installation of a GPS device on his Jeep infringed upon his possessory rights. The United States contends that Jones could not have a reasonable expectation of privacy since his movements occurred in the public sphere, and that Jones retained his possessory rights since the GPS device did not interfere with the vehicle’s use. The Court’s decision in this case will affect both the use of technology in law enforcement investigations and the extent to which individuals are protected from such technology.
The authors would like to thank Professor Sherry Colb for her insights into this case and former Supreme Court Reporter of Decisions Frank Wagner for his assistance in editing this preview.
• Wex: Privacy
• Verdict, Sherry Colb: One Way or Another, I’m Gonna Find Ya: The U.S. Supreme Court Considers Whether GPS Tracking of Suspects’ Cars Requires a Search Warrant (Sept. 21, 2011)