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The Fourth Amendment and the Surveillance State


I have some follow-up thoughts to the GPS surveillance decision handed down by the Supreme Court earlier this week. The first major takeaway from the case is that Sonia Sotomayor was one of the best decisions Obama has made so far:

The split on the Court Monday, in essence, focused on which of these strands of Fourth Amendment jurisprudence to emphasize. The most interesting opinion in the case, however, is Justice Sonia Sotomayor’s concurrence. Although I’m a little puzzled as to why she joined Justice Antonin Scalia’s opinion—which seems to give less attention to her fundamental concerns—her own analysis is brilliant, forcefully arguing that the Court needs to rethink its Fourth Amendment jurisprudence in light of the Internet/wireless communication age. The “expectation of privacy” standard will not provide adequate protection if the increased potential power of the state is not taken into account. Sotomayor is correct, first of all, to argue, that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” And she is extremely persuasive in her argument about why the judiciary needs to check the use of GPS technology:

“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’ […] I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. … I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent ‘a too permeating police surveillance.'”

Every point here is crucial, and her argument about the danger of information in the hands of third parties is particularly important.

Alas, Sotomayor spoke only for herself, so I have another piece about how to the extent that this is a victory, it’s a minor one. Normally, in a civil liberties case you’d take any vaguely acceptable opinion from Scalia and (especially) Alito and run, and neither of their conflicting opinions forecloses the development of a Fourth Amendment doctrine properly adapted to new technological powers. But the Court stopped short of even holding that this search violates the Constitution, and one can easily see either standard evolving in a way that gives the state extremely broad latitude. Thinking along the lines expressed in Sotomayor’s concurrence is desperately necessary.

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  • Oh my goodness! She considered arguments and legal principles in terms of their actual effects on actual persons based on the actual human experience!

    Why, that’s almost compassionate!

    • pete

      I think empathetic is the word for which you are reaching. Compassionate is what good conservatives are, empathetic is what bad liberals are. Oh, and rational is what feelthy dead-skunk middle-of-the-roaders are. The English language, she is very nuanced.

      • Right, Obama wants judges with empathy.

        Republicans are therefore passionately opposed to judging having empathy. Because that’s so awful.

  • ajesquire

    I agree that Scalia handed down the narrowest possible opinion in the defendant’s favor.

    And while I’ll take a good opinion where I can, this is another example of terrible lawyering by the prosecution and of bad facts making at least less than optimal law.

    Did the prosecution really argue that attaching the GPS wasn’t a 4th Amendment Search, after they’d already applied for and were granted a warrant to do so?!?

    Why not just argue for a warrantless search exception and/or fight for rejection of the exclusionary rule instead of picking a fight on the one issue that you essentially conceded?

    I think the prosecution really gave the Court little choice, and Scalia did his best to tailor his opinion as narrowly as possible to give them a chance on remand.

    • Richard

      This was a warrantless search. The government argued that attaching a GPS device to the underside of a car which was parked in a public parking lot and then monitoring the car for 28 days was not a search. Since they claimed it was not a search, they didn’t argue that there were grounds for excusing the failure to get a warrant. They never got a warrant for attahing the device

      The majority opinion says that it was a search because attaching the GPS to the underside of a car, even one parked in a public parking lot, was a trespass onto personal property and that a trespass requires a warrant (unless the government can show an exception to the warrant requirement which the government never tried to do).

      The majority opinion is very narrow – trespass requires a warrant in the absence of exceptional circumstances not found here. If they had got a warrant, then the Scalia majority seems to say that this would not present a problem.

      • David M. Nieporent

        This was a warrantless search. The government argued that attaching a GPS device to the underside of a car which was parked in a public parking lot and then monitoring the car for 28 days was not a search. Since they claimed it was not a search, they didn’t argue that there were grounds for excusing the failure to get a warrant. They never got a warrant for attahing the device.

        Actually, they did get a warrant for attaching the device. Bizarrely, however, they ignored it. (The warrant was good for 10 days, in DC; they installed the GPS device on Day 11, in Maryland.)

        • R Johnston

          If a search that was conducted outside the warranted time-frame and outside the warranted jurisdiction counts as a search conducted under a valid warrant then all searches count as searches conducted under a valid warrant.

          In other words, you’re indisputably and irredeemably retarded.

    • L2P

      They did argue for several exceptions, but none of them applied. It was a parked car; no exigent circumstances exist, there was no immediate danger or threat, simply nothing that would justify ignoring the warrant requirement.

      I think the prosecution made the case that had the best chance. It “looks” most like an open field case. The cars just sitting there, and putting a beeper on it is a lot like just overhearing a conversation between two people in an open field.

      • Richard

        I read the Scalia opinion as saying that the government arguments were that no search occurred, not that there were exceptions to the warrant requirement for a search. The last paragraph of his opinion states that the government argues that even if was a search, the search was reasonable but he says that since this argument was not raised at the trial court level, it is waived.

        • Scott Lemieux

          As I say in the linked pieces, the majority opinion doesn’t address the question of whether the search was illegal; it just determines that it was a search. I assume that the state will have a tough road but it didn’t actually determine whether exigent circumstances applied.

          • Richard

            I don’t think thats quite right, Scott. The Scalia opinion says its a search because its a trespass and it also finds that the state waived the right to show that it was a reasonable search despite the lack of a warrant. and because there was no warrant. It then affirmed the decision of the appellate court which found that the fruits of the search had to be excluded and the conviction overturned (although it did so on different grounds than the circuit). So the Scalia opinion and the Sotormayor concurrence is a finding that the search in this case was illegal and the conviction invalid.

            I agree with you that the opinion did not necessarily find that attaching a GPS device in the absence of a warrant is illegal. If the same facts came up again, the state could try to argue that it was a legal search and there were reasons to excuse the lack of a warrant but it seems pretty clear that the Court would hold that the state cannot show that there was an exception to the warrant requirement that would apply. As a matter of practicality, this is unlikely to occur. All police departments in the future, as many have already been doing, will require their officers to get a warrant to attach a GPS device.

            • Scott Lemieux

              You’re right; he didn’t decide the general case but the evidence will be inadmissible in this particular one.

  • DK

    I’ve been pleasantly surprised with Sotomayor (not that I thought she’d be bad, just better than expected) and even more so that it’s been on crime issues (being the only former prosecutor on the court). It is unfortunate that the Admin was making these arguments, and that they took no heat, as far as I can tell, from other elements in the party about it. (If nothing else, our best defense against libertarianism is robust civil libertarianism.)

    • L.M.

      Agreed. Obama 2012: Four more Sotomayors!

  • Scott Lemieux

    Evidently, this post needed more Tebow or Rick Reilly.

    • DK


    • Bill Murray

      Scalia trolls have yet to invade the internet?

    • Incontinentia Buttocks

      Or Ron Paul! You can never have too much Paul (apparently)!

      • Scott Lemieux

        Dammit, could have worked in something about how according to Ron Paul this would all be moot, because the 4th Amendment wouldn’t apply to the states. This, of course, makes him the candidate of choice for the civil libertarian.

    • Murc

      Joking aside, Scott, and speaking only for myself… a lot of times you, Erik, and Farley make posts in your areas of expertise where I have nothing to add to them but a resounding ‘me too.’

      That doesn’t mean you should stop doing them or scaling them back, but it does mean that its going to be less a thrill ride than that post you made about how Tebow and Ron Paul are pawns of Barack Obama’s supply-side Trilateral Commission politics.

    • I recommend more Charles Murray.

  • L2P

    Maybe I’m foolishly optimistic, but given how this court operates (Precedent is Holy!) it’s possible this is way of revisiting some of the 4th Amendment decisions basically giving the police free reign in the open. We’ll have to see.

  • Epicurus

    I would dispute your premise that Scalia/Alito actually do much thinking about their opinions. In my mind, it’s more like, “Hmm, how would Roger Ailes decide this case?” They then turn all the drafting over to their clerks, and retire to the club for drinks. Good on the President for nominating someone who actually understands what “judging” actually entails.

    • DK

      Scalia in particular is better on these issues than a garden variety conservative if you actually look at what he does (which isn’t to say he’s always right). Even if what you say is true, the only way to establish it is to show how what they do is indefensible.

    • Scott Lemieux

      In fairness, Scalia is one of the few modern justices who mostly writes his first drafts.

      • Richard

        Absolutely true. You can excuse Scalia, justifiably, of many things but you can’t accuse him of not writing his opinions and going off drinking somewhere.

        • Richard

          Meant to say, you can ACCUSE Scalia of many things

  • CJColucci

    I suspect that Sotomayor signed on with Scalia because, while she was very interested in the questions raised by the Alito approach, she wasn’t ready to give answers — I don’t fault her for that — and the Scalia approach allowed her to come out right in this case and leave those issues for another day.

    • Scott Lemieux

      I think that’s right. The fact that it says nothing about the larger issues, in a way, makes it an improvement.

      • Richard

        I would agree as well. The Scalia opinion only establishes a minimum threshold and says nothing rules to be applied in situations where there is no trespass. I also think sotomayor was uncomfortable with the vagueness of the test (if you could even all it one) in the Alito opinion. She was more comfortable with the Scalia trespass test and in raising some ideas about issues that are sure to come up in the future (such as the argument that there is no expectation of privacy in disclosures made to a third pary) even those issues were not present in this case. The benefit of the sotomayor opinion is that we have a bright line rule on trespass and pretty much a clean slate on issues that will come up in the future.

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