Justices Rein In Police on GPS Trackers

(by Jess Bravin, The Wall Street Journal, WSJ.com) WASHINGTON – The Supreme Court ruled Monday that police violated the Constitution when they attached a Global Positioning System tracker to a suspect’s vehicle without a valid search warrant, voting unanimously in one of the first major cases to test privacy rights in the digital era.

The decision offered a glimpse of how the court may address the flood of privacy cases expected in coming years over issues such as cellphones, email and online documents. But the justices split 5-4 over the reasoning, suggesting that differences remain over how to apply…principles prohibiting “unreasonable searches.”

The minority pushed for a more sweeping declaration that installing the GPS tracker not only trespassed on private property but violated the suspect’s “reasonable expectation of privacy” by monitoring his movements for a month. The majority said it wasn’t necessary to go that far, because the act of putting the tracker on the car invaded the suspect’s property in the same way that a home search would.

Justice Antonin Scalia, writing for the majority, said that as conceived in the 18th century, the Fourth Amendment‘s protection of “persons, houses, papers, and effects, against unreasonable searches and seizures” would extend to private property such as an automobile.

“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,” Justice Scalia wrote, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

Advocates for privacy said that despite the differences, the court’s unanimity on the outcome sent a strong message.

“This is a signal event in Fourth Amendment history,” said Walter Dellinger, a former acting solicitor general who represented the defendant, Antoine Jones.
[The case is U.S. v. Jones, 10-1259.]

The government said Federal Bureau of Investigation agents use GPS tracking devices in thousands of investigations each year. It argued that attaching the tiny tracking device to a car’s undercarriage was too trivial a violation of property rights to matter, and that no one who drove in public streets could expect his movements to go unmonitored. Police were free to employ the tactic for any reason without showing probable cause to a [judge] and getting a search warrant, the government said.

The justices seemed troubled by that position at arguments in November, where the government acknowledged it would also allow attaching such trackers to the justices’ own cars without obtaining a warrant.

Emphasizing the Fourth Amendment’s “close connection to property,” Justice Scalia wrote that even a small trespass, if committed in “an attempt to find something or to obtain information,” constituted a “search” under the Fourth Amendment.

…………

Monday’s decision stems from a narcotics operation that turned up nearly 100 kilograms of cocaine and $1 million when authorities raided a house in suburban Fort Washington, Md., in 2005.

District of Columbia police and FBI agents watched Mr. Jones, a nightclub owner, for months with an array of surveillance techniques, including tapping his cellphone under a warrant from a federal judge.

A federal appeals court in Washington voided Mr. Jones’s conviction, however, because police followed his movements for four weeks by putting a GPS tracker on his Jeep Grand Cherokee without a valid warrant. Police had a warrant for the District of Columbia, but it had expired before the GPS device was installed in Maryland.

In an effort to preserve Mr. Jones’ conviction, the government argued that no warrant was needed in the first place.

Monday, law-enforcement officials said the decision would primarily affect major narcotics investigations, like that which snared Mr. Jones.

Patricia Lykos, the district attorney in Houston, said police conducting drug investigations often don’t have time to obtain a warrant before attaching a tracking device.

“When you need a warrant, it’s usually like 3 o’clock in the morning,” she said. “You can imagine the danger that law enforcement is in when they try to plant one of these devices in the first place.”

But Vernon Herron, a former Maryland state police commander, said investigators rarely have trouble obtaining warrants.  “Courts have been very liberal with allowing the use of these devices,” said Mr. Herron. …

Justice Sotomayor, while joining the Scalia opinion, wrote separately to set out various privacy issues that emerging technology was presenting, citing the fact that so many routine actions now are tracked by private websites.

Court precedents generally provide no protection against third parties, such as telephone companies, voluntarily turning over information they collect about an individual to the government. In the digital age, however, “I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every website they had visited in the last week, or month, or year,” she wrote.

Write to Jess Bravin at jess.bravin@wsj.com.

Copyright 2012 Dow Jones & Company, Inc. All Rights Reserved. Reprinted here for educational purposes only. Visit the website at wsj.com.