New Age Tracking Technologies in the Post-united States v. Jones Environment: the Need for Model Legislation

• Publication year: 2022

48 Creighton L. Rev. 553. NEW AGE TRACKING TECHNOLOGIES IN THE POST-UNITED STATES V. JONES ENVIRONMENT: THE NEED FOR MODEL LEGISLATION

NEW AGE TRACKING TECHNOLOGIES IN THE POST-UNITED STATES V. JONES ENVIRONMENT: THE NEED FOR MODEL LEGISLATION

JORDAN MILLER(fn*)

ABSTRACT

Since the 1980's, police have used tracking technologies to obtain valuable investigatory information on the movements of criminal suspects. Recent developments in GPS technology and the ongoing emergence of drone-based tracking technology allow for constant, twenty-four hour, seven-day-a-week surveillance of individuals, providing pinpoint accuracy of their every movement. This intimate level of data collection, when obtained without a warrant, pushes Fourth Amendment reasonable search principles to the limit. In the recent case of United States v. Jones (2012), two dueling theories, property rights and Katz's reasonable expectation of privacy, were advanced for testing the reasonableness of tracking searches. The narrower property rights theory prevailed in Jones, but did so with four Justices openly favoring the Katz test and a fifth Justice suggesting that, in a future case not involving property rights, she would also apply the Katz test. This Article examines how Jones has been implemented by lower courts and looks at both theories as they apply to existing technologies and technologies currently in development, highlighting the weaknesses and strengths of the Jones ruling. Based on this analysis, the Article concludes that the Katz reasonableness test is better prepared to handle the stress placed on privacy and the Fourth Amendment protection against unreasonable searches posed by new age technology. From this conclusion, the Article proposes a comprehensive model legislative solution, based on the analysis of Jones and existing state statutes, to regulate police use of tracking technology and to establish a warrant process for tracking searches.

TABLE OF CONTENTS

I. INTRODUCTION ................................... 555

II. TRACKING TECHNOLOGIES: SCIENTIFIC OVERVIEW OF PAST, PRESENT, AND FUTURISTIC NON-PERSONNEL-BASED SURVEILLANCE ................................... 557

A. 1980s Pre-GPS Technology Used in the Knotts and Karo Era ................................... 557

B. Twenty-First Century GPS Technology: Advancements Forcing the Court to Take Pause ........................................... 560

C. Size and Installation Advancements: Decreased Detectability/Increased Efficiency ................ 563

D. Ongoing Technological Advancements: Escaping Jones' Property Theory Rationale ...... 565

III. THE JONES RULING: PROPERTY RIGHTS VS. KATZ REASONABLENESS ......................... 570

A. Pre-Jones Role of Property Rights in Fourth Amendment Law ................................ 570

B. The Majority Reasoning From Jones ............. 572

C. Justice Alito's Concurrence ...................... 576

D. Justice Sotomayor: A Future Fifth Vote for Applying Katz ? .................................. 578

IV. IMPLEMENTING JONES' PROPERTY RIGHTS THEORY ........................................... 579

A. Lower Courts' Readings of Jones ................. 579

B. Obstacles to Effective Application of Jones and Accompanying Need for a Non-Trespass-Based Solution ......................................... 580

C. United States Supreme Court's Reliance on Jones ........................................... 586

D. Predicting Future Tracking Search Cases: Technological Sophistication as the Centerpiece . . 588

V. A LEGISLATIVE PROPOSAL AND SOLUTION ..... 591

A. Forms of Tracking Requiring a Warrant ......... 593

B. Durational Point at Which a Warrant is Required ........................................ 593

C. Standard for Obtaining a Warrant ............... 594

D. Scope of Individuals Protected by Warrant Requirement .................................... 598

E. Jurisdictional and Territorial Limitations on Warrants ....................................... 599

F. Expiration of Warrants .......................... 601

G. Court for Obtaining a Tracking Warrant ......... 602

VI. CONCLUSION ..................................... 603

I. INTRODUCTION

In United States v. Jones,(fn1) the United States Supreme Court held that the government conducts an unlawful search under the Fourth Amendment when, without a warrant, it attaches a Global Positioning System ("GPS") device to a vehicle and monitors that vehicle's movements through the device. Factually, Jones featured a scenario where the government, outside the purview of the warrant it possessed, attached a GPS device to the underside of Jones's vehicle and monitored his movements on a twenty-four hour, seven-day-a-week basis for four weeks.(fn2) Although the use of electronic tracking devices without a warrant previously received the Court's blessing, United States v. Knotts(fn3) and United States v. Karo(fn4) featured less sophisticated technology that was neither attached to property owned by the defendant at the time of installation nor used for the prolonged and continuous period of time at issue in Jones. These distinguishing factors resulted in a unanimous panel opinion from the United States Court of Appeals for the District of Columbia Circuit finding a Fourth Amendment violation(fn5) followed by a divided D.C. Circuit falling one vote short of granting rehearing en banc.(fn6) On appeal, a 9-0 United States Supreme Court opinion affirmed the judgment-although not necessarily the reasoning-of the D.C. Circuit panel.

In reaching its unanimous outcome, the United States Supreme Court confronted dueling rationales for finding the GPS-based search unreasonable and violative of the Fourth Amendment: 1) prolonged, continual surveillance fails the prevailing reasonable expectation of privacy test evolving from Katz v. United States,(fn7) or 2) per a property rights/trespass theory of Fourth Amendment law, the physical placement of the GPS device on the defendant's car constitutes a trespass that, while not rising to the level of a seizure, makes the ensuing search unreasonable. Although the independent role of property rights in Fourth Amendment unreasonable search analyses was thought long dead,(fn8) the narrowest of majorities-with Justice Sotomayor of the majority writing a concurrence strongly resembling Justice Alito's concurring reasoning-resurrected the violation of property rights as a basis for holding a warrantless search unconstitutional.

Commentators viewed Jones as a major change in the landscape of Fourth Amendment law, giving defendants a new avenue to challenge a multitude of searches frequently employed to yield fruitful evidence in criminal investigations.(fn9) This Article advances an alternate view regarding the lasting significance of Jones. Unexpected as the return to a property rights focus may be, the lasting practical limitations placed on tracking searches imposed by Jones appear far more questionable. This Article asserts that Jones presents the narrowest possible rationale for excluding the evidence from the GPS search. This is a product of two factors. First, a defendant's ability to prevail on a motion to exclude pursuant to Jones is limited by the traditional doctrines of standing and officer reasonableness, which foreclose the remedy of exclusion unless the defendant demonstrates a sufficient personal interest in the item searched and the deterrent rationale of the exclusionary rule is furthered. Second, as technology evolves, the property rights rationale will be inapplicable to future tracking-based searches. Combining these two factors, absent a holding that prolonged or intimate technology-based searches violate the reasonable expectation of privacy test, the traditional limitations on gaining exclusion increase and intensify when sophisticated technology is at issue. For these reasons, this Article advances an argument that urges either the adoption of the reasoning propounded by Justice Alito's concurrence for holding tracking searches unreasonable or the passage of legislation regulating governmental usage of existing and future tracking technologies.

To provide a sufficient basis of understanding, Part I of this Article presents an overview of how tracking technology operates. An initial focus is placed on previously constitutionally-approved technology from Knotts and Karo. This is followed by a demonstration of how existing technology, like that used in Jones, operates and how next generation technology will be employed in tracking and recording the movements of suspects. This Article emphasizes the advantages of new installation-free technologies over both installation-based tracking devices and physical police surveillance. Part II analyzes the opinions from Jones. Part III shifts to assessing how courts interpreted Jones and how issues of standing and police reasonableness stifle defendants' ability to successfully use Jones. From there the Article argues that the majority rationale of Jones presents a contradiction and provides ineffective protection, producing the conclusion that the Alito rationale should become the prevailing rule and new legislation should be adopted.

II. TRACKING TECHNOLOGIES: SCIENTIFIC OVERVIEW OF PAST, PRESENT, AND FUTURISTIC NON-PERSONNEL-BASED SURVEILLANCE

A. 1980's PRE-GPS TECHNOLOGY USED IN THE KNOTTS AND KARO ERA

The United States Supreme Court in United States v. Knotts(fn10) opened its opinion with...