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GPS Tracking Constitutes a Search

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The Supreme Court has unanimously held that GPS tracking of an individual by the state constitutes a “search” in terms of the Fourth Amendment.    However, the Court declined to answer the crucial question of with the search was a “reasonable” one under the Fourth Amendment.  There was also a dispute between the Scalia majority opinion and Alito’s concurrence about the basis of holding that GPS tracking was a search.   If I understand correctly, oddly enough the Alito concurrence (joined by Breyer, Ginsburg, and Kagan) outlines a tougher standard, arguing that in some cases visual observation is sufficient to constitute a “search” given modern technology, while Scalia holds to the traditional position that mere visual observation cannot constitute a “search.”   I’m a little puzzled why Sotomayor — who advanced a similar position in a solo concurrence — didn’t just join Alito’s opinion instead, thus making it the opinion of the Court.   At any rate, the significance of the ruling is at this point unclear; whether it will have teeth will depend on whether or not the courts will just find that such searches are generally “reasonable.”   More on this tomorrow.

…as Glenn suggests in comments, it seems to me that the Sotomayor position is preferable to either; both Scalia and Alito want to carve out different exceptions to what constitutes a “search.”   But I’m still not convinced that given the two viable majority coalitions that the Alito position isn’t preferable.

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  • Glenn

    It seems that SS didn’t join Alito because Alito is resistant to the idea that trespassory violations are, by themselves, sufficient to constitute a search. SS makes it clear that she thinks (and understands the majority to say) that this is in addition to the Katz “expectation of privacy” test. What I don’t understand from my initial skimming is why the other 3 liberals are resistant to that notion.

    • Richard

      I think its because they don’t think a 18th century rule of property law, (which varies from state to state) is how you determine the validity of a search under the Fourth Amendment. The bottom line is you had the Supreme Court deciding a tresspass case here (surely an unusual use of court resources) with almost no guidance as to whether the same result can be obtained by methods that don’t constitue a physical tresspas (for example, the government uses a cell phone carrier obtain the same results as a GPS by using a suspect’s cell phone information transmitted to the carrier).

      • Glenn

        Tom Goldstein at Scotusblog is also puzzled, but offers a suggestion somewhat similar to yours, Richard. I understand the point but still find it a bit odd.

        One of the puzzles of the case is why other liberal members of the Court (Justices Ginsburg, Breyer, and Kagan) join in Justice Alito’s rejection of the majority’s finding that the installation of the GPS device is a “search.” Like Justice Sotomayor, they could have agreed with Scalia on the installation and Alito on the long-term monitoring. I think that the answer is probably a principled one about doctrine. Justice Scalia’s “trespass” theory, they may believe, is a vehicle towards narrowing privacy rights. Justice Sotomayor was apparently persuaded by Scalia’s unequivocal statement that privacy expectations are properly measured by both his trespass analogy and more modern assessments of reasonable expectations of privacy. I’m unclear on why the remainder of the Court’s left was not. The liberals may have concluded that Alito has the better reading of the cases, and because they are less naturally inclined towards property rights, they were swayed by the questions of administrability he raises.

  • Petitioner: Your honors, we would like a ruling as to whether slapping a device on someone’s car and tracking them secretly consitutes an unreasonable search.

    SCOTUS: Oh, it’s a search alright! Now where’s my Brawndo?

    • Furious Jorge

      It’s got electrolytes.

      • Kurzleg

        It’s got what Supreme Court Justices need!

  • AAB

    Man, whatever other criticisms can be leveled against Obama, the Sotomayor pick was outstanding. Reconsidering the notion that individuals have no expectation of privacy in information disclosed to third parties? Yes please.

    • Scott Lemieux

      Yes, exactly — this is the focus of what I’m writing now. If only SS’s opinion was the majority, and yes it was a great pick.

    • Incontinentia Buttocks

      No kidding! I was pretty pleased by the Sotomayor pick at the time, but she’s exceeded my expectations so far.

      And despite the disappointment of the Kagan pick, the SCOTUS remains a darn good reason to vote for Obama. If you can’t tell the difference between the Kagans and Breyers of the world (whatever their limitations) and the Alitos and Roberts, you need a new pair of political glasses (or maybe you’re just angling for a gig as the next Jeffrey Rosen).

    • liberal

      I agree that she seems to be very promising in her views, but there’s the unfortunate matter that she’s a diabetic and a smoker.

  • evil is evil

    Funny, it wouldn’t bother me a bit to put a tag on all of the vehicles owned by the Supreme Joke and their relatives.

    I don’t believe that Thomas is the only bribe taker.

    • Holden Pattern

      It’s not as if the wingnut wing of the court makes any secret of their bonding moments with the wingnut wing of American money & politics. How could you distinguish their ordinary activities from bribe taking, exactly?

  • DrDick

    I am both shocked and delighted to see the conservatives come down on the side of justice for a change.

  • Glenn

    BTW, I wouldn’t suggest reading Kagan’s preemption decision today (National Meat Ass’n v. Harris) while you’re enjoying your ham on rye.

  • CashandCable

    I really like the way the majority opinion and the concurrences interact. On the one hand, we have Scalia reinvigorating a trespass standard that everyone thought had been completed replaced by Katz (in fact, this opinion completely contradicts what I was taught not-so-long ago in 4th amendment law, which was “the threshold question is always REOP, period”). I’m not sure the basis for resurrecting that standard is very strong, but no matter – the point is that is leads to the right conclusion, it does nothing to weaken Katz, and if you accept the trespass theory then judicial conservatism properly suggests you decide on those grounds and leave the REOP stuff for another day. This is why Sotomayor ultimately joined Scalia and not Alito.

    But it’s important to note that Scalia’s opinion does not foreclose a later decision embracing Alito’s concurrence (or Sotomayor’s) – it merely leaves the issue open to be revisited later. And that leads me to the second reason I like this case. We now have five judges on the record as being concerned about the REOP aspect of GPS and similar comprehensive surveillance systems. When the inevitable litigation ensues that can’t be disposed of through trespass analysis, lower court judges will be able to read these concurrences and feel more comfortable about restricting surveillance techniques on REOP grounds.

    As a sidenote, I was shocked that Alito wrote the concurrence the way he did. To see him mount a fairly vigorous defense of the right to privacy against the government was quite surprising, and it was very shrewd of Ginsburg and the other liberals to let him write that concurrence.

    • CashandCable

      I should also add that I’m very happy that neither Scalia nor Roberts tried to pull a bait-and-switch by saying that the GPS tracking violated the 4th amendment but that the violation did not warrant use of the exclusionary rule (as they’ve done in other recent cases).

  • Richard

    I read the opinions differently

    Scalia says placing the GPS device on the car was a trespass under state law.. All trespasses are searches in his view. No need to consider whether the search was reasonable since government never made that argument at trial (relying on case law that said placing a GPS device was not a serach) so forfeited that argument.

    Sotomayor says she joins the Scalia opinion (that all trespasses are searches.) She goes on to say in what is dicta (because she joined in the Scalia opinion) that other types of electronic searches which do not constitute a physical tresspass may violate the Fourth Amendment. She didn’t join the Alito opinion because she was in favor of the Scalia bright line trespass rule (which the Alito opinion strongly rejects).

    Alito, joined by Ginsburg, Breyer, and Kagan, reject the argument that a trespass necesarrily violates the Fourth Amendment but makes the argument that the long term monitoring present in this case violated the suspect’s reasonable expectation of privacy (under the Katz rationale) but seems to imply that installation of a GPS for a few hours might be fine.

    More questions left unanswered by this opinion than answered.

  • Lamont Cranston

    This could be so easy. Create a new rule – all searches which are (or stem from) a violation of the law are themselves illegal, and should be excluded.

    Simple to explain, simple to apply. Also just, for whatever that’s worth.

    • Richard

      That would actually be a restriction of the current state of affairs. When there was a trespass, there would be exclusion but the overwhelming majority of searches, especially electronic ones, don’t violate any law .

  • wkwillis

    The Republican justices had to find that tracking search illegal. In a close analogy, the cell phone a Republican carries is always in close proximity to his credit card and to his place of work.
    It would make tens of thousands of Republicans in New York, Connecticutt and New Jersey unable to claim Florida residency (and voting privileges) and virtually impossible to evade taxes and spend the money using overseas accounts and associated credit cards.

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