Katz-ing up and (not) losing place: tracking the Fourth Amendment implications of United States v. Jones and prolonged GPS monitoring.

• Author: Snyder, Michael L.

In United States v. Jones, the United States Supreme Court confronted a novel Fourth Amendment warrantless search issue when the Government installed a Global Position System ("GPS") device on a suspected criminal's vehicle to monitor his movements for a month. Because of GPS technology's pervasiveness in modern society, as well as its potential for abuse, courts and legal practitioners need clear guidance in this area of law. In Jones, however, the Court's opinions only served to obscure further an already long and complex body of Fourth Amendment jurisprudence. Even though the Court unanimously concluded the Government had conducted an unreasonable search, the justices disagreed in their reasoning. The majority found that the Government committed a trespass by installing the GPS device on Jones's vehicle to gather information. By focusing on the physical trespass, however, the majority invoked a cursory and antiquated approach to search analysis that the Court had abandoned over fifty years earlier. Justice Alito identified this shortcoming in his concurring opinion and argued that the majority should have analyzed the search question under the Katz v. United States "reasonable expectation of privacy" test. Although Justice Alito identified the appropriate test for the search question, he did not go far enough in his analysis. Therefore, practitioners must turn to the opinion by the D.C. Circuit Court of Appeals in an earlier disposition of the Jones case to understand fully the appropriate analysis under the Katz "reasonable expectation of privacy" standard. In addition, neither the majority nor concurring opinions sufficiently considered the question of whether the government had seized Jones's vehicle under the Fourth Amendment. Such an inquiry is another viable and common sense argument practitioners should use in cases involving prolonged electronic surveillance. In such cases, practitioners should argue that the installation of such devices is a seizure under the Fourth Amendment as defined in the United States v. Place line of cases.

1. INTRODUCTION

   The Fourth Amendment provides for "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

   seizures." (1) The United States Supreme Court has determined that the Amendment protects two distinct expectations, one concerning "seizures" and another concerning "searches." (2) While the term "seizure" is most often used in reference to a person, (3) the Court has summarily defined a seizure of property as "some meaningful interference with an individual's possessory interests in that property." (4) Correspondingly, the Court has summarily determined that a "search" occurs when the Government infringes upon "an expectation of privacy that society is prepared to consider as reasonable." (5) Although alleged violations of these two rights frequently arise in federal criminal trials, the development of these two areas of law, especially in the face of increasingly sensitive technology, "has not--to put it mildly--run smooth." (6)

   In United States v. Jones, the United States Supreme Court addressed the issue of whether the Government, acting without a valid warrant, could attach a GPS device to a suspected criminal's car and monitor his movements for a month. (8) Previously, the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") concluded the Government infringed upon Antoine Jones's reasonable expectation of privacy and reversed his conviction. (9) Describing Jones's vehicle as a "constitutionally protected area," the Supreme Court majority disregarded the D.C. Circuit's holding and ruled that the Government had committed a Fourth Amendment search of Jones by physically intruding upon the vehicle to gather information. (10) Justice Alito's concurring opinion, on the other hand, argued that the Court should have analyzed the issue under the "reasonable expectation of privacy" inquiry developed in the Katz v. United States (11) line of cases, rather than focusing solely on Jones's property interest. (12) Justice Alito concluded that, under the Katz analysis, the Government violated Jones's reasonable expectation of privacy because the Government used the GPS device to monitor continuously his movements for one month. (13)

   Justice Alito's application of the "reasonable expectation of privacy" test, however, though faithful to the Supreme Court's search analysis in the Katz line of cases, is somewhat conclusory and provides little guidance for other courts and practitioners. (14) Although the Supreme Court ignored the D.C. Circuit's "reasonable expectation of privacy" analysis, the D.C. Circuit's analysis is nonetheless valuable in providing other courts and practitioners with a workable legal framework for similar cases in the future. (15)

   The Supreme Court's holding also leaves open a number of questions, such as whether the use of GPS tracking in the absence of a physical trespass could be viewed as a Fourth Amendment search. (16) Additionally, the majority's holding does not address whether the Court may need to re-examine the doctrine that individuals have no reasonable expectation of privacy in information turned over to third parties, such as cellular phones that contain GPS technology. (17) Thus, the utility of the Court's holding is extremely limited, and, as Justice Alito argued, finds little support in case law and is "highly artificial." (18)

   In addition to these problems with the Court's search analysis, neither the majority nor concurring opinions significantly considered the question of whether the Government seized Jones's vehicle. (19) The Court should have applied the seizure analysis developed in the United States v. Place (20) line of cases, in which the attachment of the GPS device may have been a Fourth Amendment seizure. (21)

   In South Dakota, the South Dakota Supreme Court decided a nearly identical GPS monitoring case under the United States Supreme Court's holding in Jones II. (22) The South Dakota Supreme Court decided the case using the physical trespass approach advanced by the United States Supreme Court's majority opinion. (23) The South Dakota Supreme Court also analyzed the case separately under the Katz "reasonable expectation of privacy" approach advocated by Justice Alito and the D.C. Circuit, and found that a Fourth Amendment search had occurred. (24) Although the South Dakota Supreme Court addressed the issue under both tests, this approach was criticized by two Justices in a concurring opinion and it is unclear which of the two--or both--Fourth Amendment search theories South Dakota practitioners should advance. (25) Because the South Dakota Supreme Court has addressed this problem in the same manner as the United States Supreme Court, the forthcoming analysis will be directed toward the federal system. (26)

   To provide clarification of this complicated area of Fourth Amendment jurisprudence, this casenote first provides the factual and procedural history of United States v. Jones. (27) Second, this casenote surveys the long history of the United States Supreme Court's cases dealing with forms of electronic surveillance to offer a comprehensive background of relevant jurisprudence. (28) Third, this casenote offers analysis in support of the mosaic approach to the search analysis utilized by the D.C. Circuit, which shows that individuals have a reasonable expectation of privacy in the totality of their movements and that prolonged GPS monitoring infringes on that privacy interest. (29) Finally, this

   casenote argues that the installation of a GPS device on an individual's vehicle should also be viewed as a Fourth Amendment seizure because the installation allows the Government to surreptitiously usurp an individual's property for its own purposes. By addressing the monitoring of GPS devices and the attachment of the devices separately, this casenote aims at showing that the use and installation of the devices stand as separate Fourth Amendment issues, and that both search and seizure analyses are potential arguments which courts and practitioners will face in the future. (31)

2. FACTS AND PROCEDURE OF UNITED STATES V. JONES

   1. FACTUAL BACKGROUND AND LOWER COURT PROCEEDINGS

      In 2004, a joint task force comprised of the Federal Bureau of Investigation and the District of Columbia Metropolitan Police Department suspected Antoine Jones of trafficking cocaine. (32) Jones owned and operated a nightclub located in the District of Columbia. (33) The Government conducted visual surveillance, installed a fixed-position camera near the nightclub, obtained pen register data, (34) and installed a wiretap covering Jones's cellular phone. (35) Based on the information it gathered, the Government obtained a warrant authorizing the installation of a GPS device on Jones's vehicle (36) within ten days and within the District of Colombia. (37) The Government, however, installed the device on the eleventh day, and did so while the vehicle was parked in a public parking lot in Maryland, rather than in the District of Columbia. (38) The device automatically communicated with orbital satellites in order to triangulate the vehicle's precise location. The device generated data while the vehicle was moving and, when the vehicle stopped, the device went into "sleeping" mode to conserve battery power. (40) Thus, once data stopped transmitting, the Government could infer the vehicle was parked. (41) Over the course of four weeks, the device monitored the vehicle's location, ultimately accumulating over 2,000 pages of GPS data for the Government. (42)

      While using the device, the Government was able to track the vehicle within the vicinity of a home in Fort Washington, Maryland, which the Government suspected of housing contraband. (43) The vehicle's presence at this location was supported by visual surveillance in the form of video tape and photographs...