10-43: Be Advised...
with Doug Wyllie, PoliceOne Editor in Chief
What does the Supreme Court decision in U.S. v. Jones mean for investigators?
In a unanimous decision — a somewhat unusual event these days — the United States Supreme Court ruled yesterday that police agencies seeking to use a GPS tracking device on the vehicle of a person (or persons) under investigation for some sort of crime must first obtain a search warrant.
In the roughly 24 hours between the time that item appeared on PoliceOne, and this column goes “live” we’ve accumulated more than 60 comments from PoliceOne Members.
That’s awesome, and I hope the debate continues both in that forum and in the area below. However, upon hearing of the SCOTUS decision (I was in my car en route to a training session) the comments I most wanted to get were those of my go-to guy on such matters — PoliceOne Legal Columnist Terry Dwyer.
“The U.S. Supreme Court decision in U.S. v. Jones underscores the need to err on the side of obtaining a warrant when seeking to infringe upon what may be considered constitutionally protected areas,” Dwyer told me today. “The unanimous opinion by Justice Scalia found the vehicle operated by Jones to be an ‘effect’ clearly within the ambit of the Fourth Amendment ‘right of the people to be secure in their persons, houses, papers and effects, against unreasonable search and seizures.’ The essence of the case was the government’s trespass upon that ‘effect’ — the vehicle — in placing the GPS device.”
Dwyer explained further that though the government’s argument that Jones could not be said to have a ‘reasonable expectation of privacy’ in where he travelled in the vehicle, Justice Scalia pointed out that this post-Katz v. U.S. standard of Fourth Amendment analysis did not obviate the need for the basic Fourth Amendment concern of government trespass upon property.
“The ‘reasonable expectation of privacy’,” Dwyer continued, “is an added-on standard of review, not an entirely new one replacing the original trespassory standard. The Court also distinguished its prior beeper cases — in Knotts and Karo — where there was initial consent in the placement of the beeper from the facts in Jones where there was no consent.
According to Dwyer, the holding in Jones does not change the landscape of police surveillance of criminal targets.
“Actual physical surveillance of suspects in public places remains unfettered. There is no ‘reasonable expectation of privacy’ as to where a person goes in public, as long as there is no trespass upon person, home, paper or effect. In responding to a concurring remark made by Justice Alito that he was using 18th century situations not analogous to present day reality Justice Scalia provided an example in footnote 3 of a constable hiding in a ‘target’s coach in order to track its movements.’ This extreme example provides the disembarking point for Fourth Amendment violations under Jones since that same fictional constable would be allowed under the opinion’s logic to follow separately on horseback to track the target’s movements. Physical surveillance is a necessary and proper means of investigation which remains equally viable.
“The last fact that needs to be mentioned in this case,” Dwyer concluded, “is that the original warrant obtained in the District of Columbia provided for installation within 10 days. The installation was made on the 11th day in Maryland. The rest we say is legal history.”
Looking forward, there are certainly some unanswered questions related to the use of GPS tracking devices in criminal investigations. For example, the Court did not say whether or not yesterday’s decision in Jones would be applied retroactively. This is important because there are a number — probably a big number at that — of court cases presently under direct appeal in which one or more sustentative piece of evidence was derived from the warrantless placement of a GPS tracking device on the vehicle of a suspect.