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.