Supreme Court Says Warrant Required for GPS Tracking (See correction below)

Monday, January 23rd, 2012

Great news. Even better, the ruling was unanimous, although there was a split on why warrantless GPS tracking violates the Fourth Amendment.

The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and tracked its movements for 28 days.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

The minority found the tracking itself to violate the Fourth Amendment, which I think is a more satisfying rationale. In her own concurring opinion, Justice Sotomayor went even further. (PDF)

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi- cations they purchase to online retailers.

Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

I think it’s probably time for me to concede that I was wrong about Sotomayor. (See here, here, here, and here.) Not only has she not been a liability in criminal justice cases, you could make a strong argument that in her short time on the court she’s been better on these issues than any other justice. (Despite his libertarian reputation, you could also argue that Thomas is the worst.) She is definitely now the justice who is  most wary of the death penalty.

I don’t think it was unreasonable of me to be wary, given Sotomayor’s background and how she was sold to the public. (Remember, Biden told a gather of cops and prosecutors not to worry about Sotomayor, because “she’s got your back.”) But so far, it’s nice to be proven wrong.

MORE/CORRECTION: Orin Kerr points out that the court did not rule that the government needs a warrant before attaching a GPS device, which means my headline is wrong. (Actually, it was wrong even aside from that; the majority only ruled on the application of the device to a car, not the act of tracking.) The majority ruled only that the placement of the device constituted a search for Fourth Amendment purposes. They didn’t rule whether conducting such a search without a warrant would be unreasonable. So this looks to be a rather narrow ruling. Alas.

The Sotomayor portion of the post still stands, though.

MORE: Here’s an even more pessimistic take on today’s decision.

Digg it |  reddit |  del.icio.us |  Fark

26 Responses to “Supreme Court Says Warrant Required for GPS Tracking (See correction below)”

  1. #1 |  Stormy Dragon | 

    The ruling didn’t actually say you need a warrant. The court only ruled that the use of GPS monitoring constitutes a search, but explictly left open the question of whether the search was reasonable or not without a warrant.

    It also never addresses what the remedy is, so even if it is unreasonable, we don’t know if the exclusionary principle applies to evidence obtained improperly via GPS.

  2. #2 |  db | 

    +1 on Stormy Dragon’s caveats, but it is a welcome suprise to me that with the 2 concurring opinions it looks like there may well be 5 votes on the court for a ruling that you do need a warrant for GPS monitering.

  3. #3 |  hattio | 

    Stormy Dragon is correct. Volokh Conspiracy (volokh.com) has a good discussion of this case (in three separate posts).

  4. #4 |  Ben | 

    Stormy, that’s technically correct, but largely meaningless distinction. Generally the only warrantless searches that are held to be “reasonable” are the ones where there is some sort of exigency or split second decisions to be made. GPS monitoring do not usually include those exigencies.

  5. #5 |  Radley Balko | 

    Thanks for the heads-up. I will now add a correction a post where I already concede I was wrong.

    Winning!

  6. #6 |  Brian Moore | 

    Radley, what other cases would you say that Sotomayor has been good on? [not a rhetorical question] I sadly do not pay enough attention to SC cases, so the only one that has really be on my radar was Citizens United, in which I felt she was on the wrong side.

  7. #7 |  Ben | 

    Also, I’m pretty sure that if the police try to test that theory that a warrantless GPS search is “reasonable”, Alito, Ginsberg, Breyer, Kagan and Sotomayor have already signalled that they’re not going to find that very persuasive.

  8. #8 |  Mark S. | 

    My thought (and I’ve seen others express it as well) is that once they decided it was a search, then all the other Fourth Amendment rulings kick in. Whether or not a warrant was needed and the remedy are already decided on other searches and there is no reason why this type of search would be any different.

  9. #9 |  Dante | 

    Still there is a problem.

    “The Supreme Court on Monday unanimously ruled that the police violated the Constitution ”

    and yet there is no penalty to the police (that I know of)? The police will continue to violate the law/Constitution until there is a very good reason for them to stop (ie the police receive a public smack down or worse). And sadly, even a ruling from the high and mighty Supremes holds little/no sway down in the dirt where the police live. They are judge, jury and executioner until those roles are forcibly taken from them.

    It’s a good ruling, but unless the police suffer when they break the law they won’t stop breaking the law.

  10. #10 |  Kukulkan | 

    The Fourth Amendment requires a warrant based upon probable cause in order to conduct an unreasonable search:

    The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

    Accordingly, the question left open for another day is whether placing a gps on a vehicle is a reasonable search. As already noted, a majority of the Court would appear to have already indicated that it would not be reasonable.

  11. #11 |  BamBam | 

    @9 for the win. Debating this to death doesn’t matter, as there are effectively no consequences for police violations.

  12. #12 |  SCOTUS Ruling on GPS Tracking « Well Known Biases | 

    [...] on The Agitator. Share this:FacebookTwitterLike this:LikeBe the first to like this post. Law, Privacy GPS, Supreme [...]

  13. #13 |  Dwight Brown | 

    Dante:

    “and yet there is no penalty to the police (that I know of)?”

    I believe the conviction was thrown out, and, if the defendant is retried, the evidence collected through the GPS tracking, as well as all evidence derived from that, cannot be used at trial.

    I realize this may not be entirely satisfactory to you. The way I look at it, though; in this case, it wasn’t like the cops went in and said, “Yeah, we know what the law is, but we’re going to defy it anyway. F–k you.” In this case, it seems like it was a new area of law; the cops thought the law said one thing, the defense thought it said another, and the Court came down on the defense’s side.

    In retrospect, I think the cops would have been smarter to get a warrant first, if they had any doubt what the law was. That way, they would have been covered. But I can’t attribute what they did IN THIS SPECIFIC CASE to malice, nor am I able to believe that they should suffer because they ended up defining new law.

  14. #14 |  Aaron | 

    Dwight: in this case they had a warrant. They just couldn’t be bothered to adhere to the conditions of it. (They had a window of ten days to attach the device — they took 11. They were supposed to attach it in DC. They attached it in Maryland.”)

  15. #15 |  Matt I. | 

    I’m with the folks at Scotusblog. It actually became clear to me during the arguments that there was no way they were going to allow THIS search to be found legal.

    The Roberts court is very aware of the implications of the decisions it makes. You can imagine them quaking at headlines that scream “SUPREME COURT SAYS POLICE CAN TRACK YOUR CAR WITHOUT WARRANT”.

    It has a bit of a ‘that’s the last straw’ feel about it, doesn’t it?

    Instead they now get a “SCOTUS sides with people against police” headline, while allowing EXTENSIVE tracking to be found legal in the future. As far as I can tell, this opinion means if the police put a tracker on your car in a government owned lot, or issue you a plate with a tracker, that’s perfectly fine. It also sets up the stage to continue to regard your private information as unprotected by the 4th the second it goes to a third party and becomes a ‘business record’ of theirs.

    They just sensed that they’ve been turning the water temperature up a little too fast.

  16. #16 |  Burgers Allday | 

    I think the case has important implications that go to even more fundamental and important issues than GPS tracking. To explain, I will repost part of a omment from an earlier thd:

    there are lots of cases where the police trespass and then claim that it is okay for the police to trespass, 4A notwithstanding. These are not GPS cases I am talking about, but simple garden variety cases where police go into a home or vehicle where they do not belong. These trespasses often seem to be excused, either by qi or by not being raised at all in the shadow of qi. Now it seems like trespass has been recognized as pretty much a prima facie 4A violation across the board. THAT’S HUGE!!!

    You may wonder what I mean by “police trespass.” One example would be the puppycide story I posted about today (that Mr. Balko was kind enough to link). Here is another example with video:

    http://youtu.be/kassP7zI0qc

    Now, obviously this was a famous video from last year and many of you have seen it before. However, my point is that [] nobody, but nobody, but nobody-but-me criticized the policeman (the nice one, not the mean one*) for hopping into the backseat of the car right off the bat. That is a trespass, but it was totally unremarked upon (except by me).

    Despite the fact that police trespasses can vary greatly in their details, the important thing to realize is that policemen trespass all the time (often with guns drawn) because they don’t see trespass as an automatic Constitutional violation. That perception needs to change and Justice Scalia’s opinion is just the thing (although I wish he had gotten 5 votes). In this way, Justice Scalia’s opinion is much broader than mere GPS issues and actually speaks to a more urgent issue. Whatever a new technology is (and there are new things every day), the police need a warrant if they need to break the law pre-existing laws to employ the new technology. The is good to know as a starting point. It is a nice bright line rule that will take care of lots of “easy” cases where the police intrusion is both creepy and a violation of pre-existing law. This will leave the more difficult cases where the intrusion is creepy, but relatively novel. That is basically how courts are supposed to organize and prioritize the new law they choose to make.

    FOOTNOTE(S):

    * The mean policeman got fired last week because there were other similar incidents that came to light bcs of the linked vid.

  17. #17 |  a leap at the wheel | 

    Burgers (great name, BTW),

    I think you are 100% correct. My first though is that this would appear to make police confiscation of a camera followed by erasure of footage unconstitutional. Carlos Miller, call your office.

    This is a fundamental change to bedrock constitutional protections in a way that unambiguously *expands* the protection of the citizenry. That’s rare and worth celebrating.

  18. #18 |  Burgers Allday | 

    Dwight: in this case they had a warrant. They just couldn’t be bothered to adhere to the conditions of it. (They had a window of ten days to attach the device — they took 11. They were supposed to attach it in DC. They attached it in Maryland.”)

    The Supreme Court pretended that those things mattered (for the time being). However, under some views of Constitutional law, those things don’t matter. That is because there is a school of thought of Constitutional law (we’ll all it the Kerr school*) that says that the court can only decide if probable cause exists at the time of the warrant application, and that any other onditions they purport to attach to the warrant are non-binding. If the Kerr school is correct, then the device was attached in a way that met all valid terms of the warrant (with the 10 day and DC conditions ostensibly being invalid under the Kerr school analysis). Maybe that is what the state will argue on remand. Maybe the Professor will even do the SOTUS argument for them on the next round. He really seemed to want to see that drugdealer go to prison back in November, and I am sure Alito and Roberts want him there too.

    FOOTNOTE(S): EG: http://volokh.com/2011/06/22/vermont-supreme-court-hears-oral-argument-on-case-about-ex-ante-restrictions-on-computer-warrants/. The opposing school is the Kozinski school. That famous 9th cir judge thinks warrant-issuing-magistrate CAN place enforceable restrictions and conditions on the manner of warrant.

  19. #19 |  Greg C | 

    Even in the best reading of this, wouldn’t it only apply to D.C. and/or FBI/Feds anyway?

  20. #20 |  Mario | 

    I’ve been reading the opinions second-hand, but doesn’t Sotomayor’s reasoning sound like it could be extended to call into question the “crime-stopper” surveillance cameras that some municipalities are installing in their downtown areas? It’s maybe not so bad as long as there are a few of them, but at some point they would be ubiquitous, and their surveillance would be combined into one grand picture of what you and I are doing all day.

    That might be why the other justices didn’t want to open this can of worms (though I for one think it ought to be opened).

  21. #21 |  Joshua | 

    Speaking of GPS, the Mexican drug cartels are doing it too:

    http://www.cnn.com/2012/01/23/world/americas/mexico-blind-drug-mules/index.html

    Good to know that the punishment for doing nothing wrong is six months in jail.

  22. #22 |  EBL | 

    It is a small victory, but still a victory. I suspect it will get better not worse over time.

  23. #23 |  Pi Guy | 

    …doesn’t Sotomayor’s reasoning sound like it could be extended to call into question the “crime-stopper” surveillance cameras that some municipalities are installing in their downtown areas?

    I used to think that as well but, as the videoing-cops-in-public issue has developed in my head, I realized that, if people can record cops in public then the reverse seems pretty fair. It’s our private lives that are guarnteed minimal scrutiny under the Constitution.

    …but unless the police suffer when they break the law they won’t stop breaking the law.

    This is what makes this a SCOTUS-worthy case. Regular readers here would tend, I believe, to see this as indipsutably overly intrusive on the part of LEO [ie: some local faction of Big Gov].

    But the F#*& Justice! We’re busting us some scumbag ass!
    routine escalation of use of force, from SWAT teams breaking up a few dozen peeps playing Texas Hold ‘Em to pepper spraying Occucry Wall Streeters, is really just an extension of the acceptance of the “If you’re not doing anything wrong then you’ve got nothing to worry about.” fallacy of liberty and justice that’s so pervasive in our society.

    We’ve given them all kinds of rope. Now they think they’re cowboys.

  24. #24 |  CyniCAl | 

    If it seems too good to be true, it probably is.

  25. #25 |  Burgers Allday | 

    I did a parody of the Jones GPS case here:

    http://police4aqi.wordpress.com/2012/01/24/parody-not-legal-advice/

  26. #26 |  The Liberty Papers »Blog Archive » SCOTUS: Police Placing GPS Tracking Device on a Vehicle Without Warrant Violates the Fourth Amendment [or Does it?] | 

    [...] the true impact of this ruling. Even Radley Balko at The Agitator had to make some corrections to his post regarding this case and made reference to the same post as well as an even more discouraging [...]

Leave a Reply