by Jefferson L. Ingram

 

Chapter 7 Update 7.16

Searches and Seizures: Houses, Places, Persons, and Vehicles United States v. Jones

Significance of the Case: When a government agent/police officer attaches a global positioning tracking device to a suspect's motor vehicle and where this is done without a warrant, the use of the device to track the vehicle's presence and movements constitutes a search as defined by the Fourth Amendment. Although a suspect's movements could be monitored through traditional police activity, the present rule requires that a government procure a warrant where it wishes to use a global positioning system device to track the location and position of a suspect's motor vehicle. The Fourth Amendment protects not only people but also places where people have legitimate expectations of privacy. This decision may have implications for a variety of electronic data collection because the Court revived the concept of expectation of privacy to include privacy expectations in physical places where a trespass may be necessary to obtain the information.

United States v. Jones

___ U.S. ___

2012 LEXIS 1063 (2012)

Facts:

Police within the District of Columbia and agents of the Federal Bureau of Investigation gathered information that indicated Mr. Jones might be trafficking in narcotics and recreational pharmaceuticals. Government agents conducted visual surveillance of the Mr. Jones' nightclub; they installed a video camera focused on the front door of the nightclub; and obtained a wiretap for Mr. Jones' cell phone. In addition, a District Court for the District of Columbia issued a warrant that authorized a GPS tracking device that was to be installed on the vehicle Jones exclusively drove, although his wife owned it. The GPS tracking device was not installed on Mr. Jones vehicle until the warrant had expired. Governmental agents installed the device on the undercarriage of Mr. Jones' Jeep while it had been parked in a public parking lot in Maryland. The device communicated to police the location of Mr. Jones' vehicle, accurate to within 50 to 100 feet, by use of a cell phone that linked to a government computer. When all the information was considered, more than 2000 pages of data had been collected over a period of about a month.

Information gathered from all sources including the GPS tracking device resulted in a multiple count indictment charging Jones and others with conspiracy to distribute and possess 5 kg or more of cocaine and possessing or distributing 50 g or more of cocaine base, contrary to federal law. Since the warrant to install had expired, the prosecution conceded that the search was warrantless, but contended that a warrant to conduct a GPS search was not required under the Fourth Amendment. Mr. Jones made all the appropriate objections to the admission of the GPS evidence and was overruled by the trial court, but was convicted by a jury and the court sentenced Mr. Jones to life in prison.

The United States Court of Appeals for the District of Columbia Circuit reversed the conviction based on the theory that the admission of the evidence obtained by the warrantless use of the GPS tracking device violated the Fourth Amendment rights of Mr. Jones. The Supreme Court of the United States granted certiorari to hear the government's appeal.

Procedural Issue:

Where a federal police officer attaches a global positioning tracking device to a suspect's motor vehicle, in the absence of a warrant but with probable cause to search, in order to obtain location and duration data for the vehicle, does such activity constitute both a search and a violation of the individual's Fourth Amendment expectation of privacy?

Held: Yes.

Rationale:

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II

A

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's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a "search."

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 (1989) (quoting Boyd v. United States , 116 U. S. 616, 626 (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.

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to "the right of the people to be secure against unreasonable searches and seizures"; the phrase "in their persons, houses, papers, and effects" would have been superfluous.

[Justice Scalia noted that the Fourth Amendment jurisprudence was once tied to legal concepts of trespass at least until the latter half of the 20th century. He noted that previously, the Court had held that wiretaps attached the telephone wires on the public street did not constitute a Fourth Amendment search because there was no entry of the houses of the defendants. The concept of a trespass did not remain as a requirement for a Fourth Amendment violation as demonstrated in later cases. Scalia mentioned that in an older case, Katz v. United States (1967), an expectation of privacy was not always tied to concepts of trespass because Mr. Katz, who was talking on a public telephone that had a police microphone nearby, had an expectation of privacy that what he said would not be overheard, even though Mr. Katz did not own the telephone booth.]

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The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on . . . cases in which we rejected Fourth Amendment challenges to "beepers," electronic tracking devices that represent another form of electronic monitoring. The first case, Knotts , upheld against Fourth Amendment challenge the use of a "beeper" that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. 460 U. S., at 278. We said that there had been no infringement of Knotts' reasonable expectation of privacy since the information obtained--the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts' cabin--had been voluntarily conveyed to the public. 6 Id., at 281-282, 103 S. Ct. 1081, 75 L. Ed. 2d 55. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for [Emphasis added] , the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts' possession, with the consent of the then-owner. 460 U. S., at 278. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Id., at 279, Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it.

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The Government also points to our exposition in New York v. Class , 475 U. S. 106, 106 S. Ct. 960, 89 L. Ed. 2d 81 (1986), that "[t]he exterior of a car ... is thrust into the public eye, and thus to examine it does not constitute a 'search.'" Id., at 114. That statement is of marginal relevance here since, as the Government acknowledges, "the officers in this case did more than conduct a visual inspection of respondent's vehicle," [Govt.Brief]. By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer's momentary reaching into the interior of a vehicle did constitute a search. 475 U. S., at 114-115.

Finally, the Government's position gains little support from our conclusion in Oliver v. United States , 466 U. S. 170 (1984), that officers' information-gathering intrusion on an "open field" did not constitute a Fourth Amendment search even though it was a trespass at common law, id., at 183. Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn, 480 U. S. 294, 300 (1987), is not one of those protected areas enumerated in the Fourth Amendment. Oliver, supra , at 176-177, 104 S. Ct. 1735, 80 L. Ed. 2d 214. The Government's physical intrusion on such an area--unlike its intrusion on the "effect" at issue here--is of no Fourth Amendment significance.

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III

The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable--and thus lawful--under the Fourth Amendment because "officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy." Brief for United States 50-51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine , 537 U. S. 51, 56, n. 4, (2002).

The judgment of the Court of Appeals for the D. C. Circuit is affirmed.

It is so ordered.

JUSTICE SOTOMAYOR , concurring.

I join the Court's opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, "[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area." Ante, at 6, n. 3. In this case, the Government installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones' Jeep without a valid warrant and without Jones' consent, then used that device to monitor the Jeep's movements over the course of four weeks. The Government usurped Jones' property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection. See, e.g., Silverman v. United States , 365 U. S. 505, 511-512 (1961).

Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. See, e.g., Kyllo v. United States , 533 U. S. 27, 31-33 (2001). Rather, even in the absence of a trespass, "a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable." Id., at 33, 121 S. Ct. 2038, 150 L. Ed. 2d 94; see also Smith v. Maryland , 442 U. S. 735, 740-741, 99 S. Ct. 2577, 61 L. Ed. 2d 220 (1979); Katz v. United States , 389 U. S. 347, 361, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). In Katz , this Court enlarged its then-prevailing focus on property rights by announcing that the reach of the Fourth Amendment does not "turn upon the presence or absence of a physical intrusion." Id., at 353. As the majority's opinion makes clear, however, Katz's reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it. Ante, at 8. Thus, "when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment." United States v. Knotts , 460 U. S. 276, 286 (1983) (Brennan, J., concurring in judgment); see also, e.g., Rakas v. Illinois , 439 U.S. 128, 144, n. 12 (1978). JUSTICE ALITO's approach, which discounts altogether the constitutional relevance of the Government's physical intrusion on Jones' Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. See post, at 5-7 (opinion concurring in judgment). By contrast, the trespassory test applied in the majority's opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.

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JUSTICE ALITO, with whom JUSTICE GINSBURG, JUSTICE BREYER, and JUSTICE KAGAN, concurring in the judgment.

This case requires us to apply the Fourth Amendment's prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle's movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. Ante, at 3-4.

This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

I would analyze the question presented in this case by asking whether respondent's reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

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