Editor’s Note: Terry Dwyer and I would like to acknowledge the extensive legal research for this article conducted by of one of Terry’s former students. Charles Barriere is presently a first-year law student at the College of William & Mary School of Law.
Since January 2012 when the U.S. Supreme Court handed down its opinion in United States v. Jones, I’ve been perplexed by the Court’s resolution of the issue. So, I’ve been looking into it. What follows here — and part two in a couple of weeks — discusses some that research, and what it means for law enforcement.
You may recall that Jones was the GPS case wherein law enforcement investigators attached a device on the defendant’s vehicle after their warrant expired and outside the geographic jurisdiction of the issuing court.
What initially struck me about the decision was how much was left unsaid concerning electronic surveillance and the Fourth Amendment, especially in a case seemingly primed for a sweeping pronouncement.
The Trespass Concept
Indeed, the Court moves slowly into unchartered areas. The rapid technological advancements within law enforcement and the impact of those advancements upon Fourth Amendment privacy rights are still developing.
Yet I was still puzzled by Justice Scalia’s resolution of the Jones case upon the trespass concept and his reference to 18th century case law to make his point. My research took me not only to the familiar Court precedents in Katz, Karo, and Knotts, but to earlier decisions to view the Court’s handling of electronic surveillance. Eventually I would review numerous recent lower federal district and circuit court opinions in a quest to delve into the meaning of Jones as it relates to the issue of locational privacy.
What expectation of privacy does an individual have with respect to their location? By our own volition, we are all connected to electronic leashes that extend across the globe and keep us tethered to a digital watchtower.
I don’t mean to sound Orwellian, but it is a simple truth — we have surrendered privacy for convenience. Who among us does not at least have a cell phone and within that cell phone a GPS function? It is the basic tether in a world of social media, smart vehicles, and portable computing devices — any one of which has the ability to place us at a specific location.
Recent leaks about the National Security Agency’s domestic surveillance program confirm not so much the ability of the government to engage in such behavior but its willingness. The NSA program focused on national security concerns and matters generally unrelated to discussions about policing — though the matter weighs heavily in any discussion about privacy rights and the Fourth Amendment.
The Curtilage Issue
This brings me back to my original premise: the future of locational privacy claims and the impact upon law enforcement. As my research progressed, I read a U.S. Supreme Court opinion from March 2013, also authored by Justice Scalia, which grabbed my attention because of a connection with Jones.
The case, Florida v. Jardines, involved a police dog’s sniff within the curtilage of a home and the subsequent use of that evidence as probable cause for a search warrant. Certainly a far cry from the technology involved in Jones, but the Fourth Amendment issue was resolved using the same physical trespass test. In Jardines Justice Scalia wrote:
“One virtue of the Fourth Amendment’s property-rights baseline is that it keeps easy cases easy. That the officers learned what they learned only by physically intruding on Jardines’ property to gather evidence is enough to establish that a search occurred.”
This resurrection of the physical trespass test — which Scalia noted in Jones had not been abandoned in 1967 by the Court’s Katz v. United States opinion — led me to question if a physical trespass occurs when the government uses technology to ascertain the location of an individual in a private place such as the home.
Clearly no one would argue a person’s reasonable expectation of privacy within the home. The facts in Jones indicated that the GPS device was used to track the location of Antoine Jones’ vehicle for an extended period of time within the garage of his residence, a location not visible to the public. Aside from the physical trespass the Court found by the placement of the GPS device on the Jones vehicle, could it be said there was a further physical trespass when law enforcement monitored the signals from the GPS device as the vehicle sat in his garage?
Justice Scalia’s reasoning in Jardines left me to wonder if this is where the Court’s position is slowly moving.
Remember also that Scalia authored the 2001 majority opinion in Kyllo v. United States in which the Court found a Fourth Amendment violation in government use of a thermal imaging device to detect heat emanating from a home. This information was the basis of probable cause to obtain a search warrant for a marijuana growing operation.
The Probable Cause Requirement
The logical extension of this argument — and its importance to law enforcement — is the extent to which this reasoning applies to cellular phone technology. Cell phones have been effectively used by law enforcement in investigations to locate criminal targets.
Whether it is used prospectively to find a fugitive from justice or historical data is retrieved to aid in an investigation, this GPS data from cell phones has been indispensable. There is, however, no definitive standard in the courts as to the need of a warrant for such data.
The probable cause requirement varies depending on the state or federal district a case is within. Groups like the Electronic Privacy Information Center (EPIC) and the Electronic Frontier Foundation (EFF) have been at the forefront of the privacy crusade, pushing for government accountability and a heightened standard for obtaining such information.
Two weeks from today in this space, I will look at the present landscape of court decisions in this area and their impact on the future of locational privacy claims.
