GPS Tracking and the Fourth Amendment

Article provided by New Jersey Criminal Defense Lawyer – Anthony N. Palumbo

In a ruling issued in January, the U.S. Supreme Court unanimously held that police must obtain a search warrant before installing GPS monitoring devices on suspects’ cars. The case, U.S. v. Jones, is the first decision from the high court regarding GPS tracking and Fourth Amendment rights, but it surely won’t be the last. The majority and concurring opinions leave open many questions about just how the Fourth Amendment should apply in cases involving other sorts of electronic surveillance techniques, especially given the increasing pervasiveness of devices such as smart phones, mobile apps, navigation systems and license plate cameras.

U.S. v. Jones

The defendant in the case, Antoine Jones, was a nightclub owner in Washington D.C. who became a suspect in a narcotics trafficking investigation. As part of the investigation, law enforcement officers installed a GPS tracking device on the undercarriage of Jones’ car and then monitored the car’s movements for the next 28 days. The tracking evidence was eventually used to convict Jones of multiple drug trafficking offenses, and he was sentenced to life imprisonment.

The Supreme Court held unanimously that the admission of evidence obtained by the warrantless use of the GPS device violated Jones’ Fourth Amendment rights. But the justices couldn’t agree on the basis for their decision; while the majority focused on the trespass caused by the monitoring device, four concurring justices said that it wasn’t the physical nature of the device that mattered, but its intrusion into Jones’ reasonable expectations of privacy.

The majority opinion: GPS tracker was an unlawful trespass on Jones’ personal effects

The Fourth Amendment provides that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” Justice Scalia, who wrote the majority opinion, focused on this language and the physical trespass caused by the installation of the GPS tracker, explaining that “for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” The placement and use of the GPS device, he reasoned, violated Jones’ Fourth Amendment rights because his car was just such a “personal effect.”

Justice Alito’s concurring opinion: GPS tracking violated Jones’ reasonable expectation of privacy

Because the majority focused on the physical trespass involved in the case, it didn’t reach the more difficult question of whether the use of GPS tracking data, more generally, impinges on reasonable privacy expectations. Justice Alito criticized this approach in his concurring opinion, calling it artificial, antiquated and unhelpful. As he explained, the majority “largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation).”

Justice Alito believed that the tracking device used in this case violated Jones’ Fourth Amendment privacy rights. He emphasized that technological innovations have made surveillance vastly easier and less expensive than traditional techniques (e.g., using investigative agents, aerial tracking, etc.), while at the same time, location-monitoring technology has become increasingly ubiquitous. As a result, law enforcement has the ability to collect location data for investigations that wouldn’t have been deemed serious enough to justify surveillance prior to the advent of GPS. Given these circumstances, Justice Alito concluded that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not-and indeed, in the main, simply could not secretly monitor and catalogue every single movement of an individual’s car for a very long period.”

Justice Alito found the long-term GPS monitoring in this case to present a fairly obvious Fourth Amendment violation, but he also acknowledged that it may be much more difficult to figure out whether other types of electronic monitoring also violate reasonable privacy expectations. As he explained, “it involves a degree of circularity, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person…. In addition, the test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations.” Because of these problems, Alito urged Congress to enact legislation governing these types of surveillance techniques.

Justice Sotomayor’s concurrence: both trespass and privacy expectations should be taken into account

Justice Sotomayor joined the majority and agreed that the case should be decided based on the trespass issue, but she wrote a separate concurring opinion to emphasize the importance of privacy rights in Fourth Amendment cases. Echoing Justice Alito, she acknowledged that the majority opinion provided very little guidance with regard to the many forms of electronic surveillance that do not require a physical intrusion. She agreed with Justice Alito’s opinion that in such cases, the important issue is not whether a trespass occurred, but whether the government impinged on individuals’ reasonable privacy expectations.

Justice Sotomayor’s conclusion that long-term warrantless GPS monitoring was unconstitutional was based on the pervasiveness of location tracking technology and the ease with which law enforcement can use it, as compared to traditional surveillance methods. But in addition to these factors, which Justice Alito also relied on, Justice Sotomayor cautioned that location monitoring could chill the associational and expressive freedoms protected by the First Amendment by giving government access to data that can reflect a wealth of detail about the target’s familial, political, professional, religious and sexual associations (such as “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on).”

Looking ahead

U.S. v. Jones is a landmark decision on the Fourth Amendment, but its holding is very narrow. Aside from the fact that the majority rested its decision on the specific physical nature of the GPS device used in the case, the court only addressed the use of electronic monitoring that had been planned in advance-it didn’t discuss the issues that arise when government wants to access previous location data and other information recorded by smart phones, mobile apps and built-in GPS navigation systems. These issues could be addressed by Congress, as Justice Alito recommended, but for the time being, the courts will have to fill in the gaps in U.S. v. Jones as individual cases work their way through the judicial system.

If you’ve been the target of GPS surveillance, contact an attorney to find out how U.S. v. Jones might apply in your case. For a free and confidential consultation with an experienced New Jersey Criminal Defense Attorney, contact The Law Offices of Anthony N. Palumbo online or at 908-272-9700 . Lead attorney Anthony N. Palumbo has been defending individuals against criminal charges for almost four decades and can help get your charges reduced or possibly eliminated.

The Law Offices of Anthony N. Palumbo is a criminal defense law firm that represents individuals throughout New Jersey, including Essex County, Hudson County, Middlesex County, Monmouth County, Ocean County and Union County.