SC Lawyer, May 2012, #4. Back to the Future: United States v. Jones and the Search for Fourth Amendment Coherence.

• Author: D. Garrison "Gary"Hill

South Carolina BAR Journal

2012.

SC Lawyer, May 2012, #4.

Back to the Future: United States v. Jones and the Search for Fourth Amendment Coherence

South Carolina LawyerMay 2012Back to the Future: United States v. Jones and the Search for Fourth Amendment CoherenceD. Garrison "Gary"HillFor the early part of our nation's history, the U.S. Supreme Court relied on the warrant preference model to decide search and seizure issues. Beginning with Weeks v. United States, 232 U.S. 383 (1914), and Carroll v. United States, 267 U.S. 132 (1925), the Court began interpreting the Fourth Amendment as providing a general "reasonableness" standard governing all forms of search and seizure. Debate continues to rage among scholars as to whether the Founders intended the Fourth Amendment to address all types of searches or only those involving warrants. That debate is truly academic, for today searches conducted without warrants are generally per se "unreasonable." Katz v. United States, 389 U.S. 347, 357 (1967). This has led to the layering of the Fourth Amendment with exceptions, which according to Justice Scalia now number twenty-two.

Katz and the definition of a search

The threshold question in any Fourth Amendment case is whether a search occurred. This is easily answerable when the government physically intrudes upon the areas textually described, i.e. "their persons, houses, papers or effects," but the clarity vanishes when the government monitors a person's activities.

Katz is notable for its famous (and famously opaque) remark that "the Fourth Amendment protects people, not places." It arose from the FBI's warrantless placing of a listening and recording device on the outside of a telephone booth to monitor the user's conversations. The government contended that no search occurred, and thus the Fourth Amendment was not infringed because there was no physical trespass into a "constitutionally protected area." Concluding that the physical trespass doctrine is practical only in the context of searches of tangible property, the Court held the Fourth Amendment guards against government invasion of not just physical areas, but also of people's private information and other intangibles. As the Court put it, "[w]herever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures." Justice Harlan's concurrence crystallized the holding, noting that the Fourth Amendment protects against government intrusions into areas or objects in which (1) a person has a subjective expectation of privacy, and (2) the expectation is one society recognizes as reasonable. See also California v. Ciraolo, 476 U.S. 207, 211 (1986) ("Katz posits a two-part inquiry: first, has the individual manifested a subjective expectation of privacy in the object of the challenged search? Second, is society willing to recognize that expectation as reasonable?"). In sum, "wherever an individual may harbor a 'reasonable expectation of privacy' he is entitled to be free from unreasonable governmental intrusion." Terry v. Ohio, 392 U.S. 1, 9 (1968) (quoting Katz, 389 U.S. at 361 (Harlan, J., concurring)).

In a momentous decision announced in January, the Court held that "Fourth amendment rights do not rise or fall with the Katz formulation." United States v. Jones, 132 S.Ct. 945 (2012). The Court found that the warrantless attachment of a GPS device on a defendant's car to track the vehicle's movements on public streets was an unconstitutional search. The device-which remained on Jones' car for four weeks-generated more than 2,000 pages of data and pinpointed the historical location of Jones' car over that time period to a radius of 50 to 100 feet. Reviving the trespass theory, the Court emphasized that "we must 'assure preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted' ... [F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ('persons, houses, papers, and effects') it enumerates. Katz did not repudiate this understanding." Jones, 132 S.Ct. at 950 (citation and footnote omitted).

The Court found that because Jones' vehicle was plainly an "effect" within the meaning of the Fourth Amendment, the trespassory placing of the GPS tracking device on the exterior of the vehicle and subsequent monitoring of the vehicle's movement amounted to a search. The Court explained: It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a "search" within the meaning of the Fourth Amendment when it was adopted. The text of the fourth amendment reflects its close connection to property, since otherwise, it would have referred simply to "the right of the people to be secure against unreasonable searches and seizures"; the phrase "in their persons, houses, papers, and effects" would have been superfluous. Consistent with this understanding, our Fourth amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.Jones, 132 S.Ct. at 949 (citations omitted).

Unsurprisingly, Justice Scalia wrote the opinion, as it is fairly consistent with the originalist viewpoint he has pressed in other areas of criminal procedure, such as his rigorous views on the Sixth Amendment Confrontation Clause. See Crawford v. Washington, 541 U.S. 36 (2004). Grasping for an 18th century counterpart to GPS surveillance, Scalia likened it to "a constable's concealing himself in the target's coach in order to track its movements," conduct that would have presumably repulsed the Founders.

The Alito concurrence

Justice Scalia's opinion was joined by Chief Justice Roberts and Justices Kennedy, Thomas and Sotomayor. Justice Alito's concurrence-joined by Justices Ginsburg, Breyer and Kagan-gently ridicules the majority's historical approach, observing that "Court has chosen to decide this case based on 18th century tort law." While agreeing that the Fourth Amendment preserves that degree of privacy against government searches that existed when the amendment was adopted, he spoofs Scalia's constable analogy. "Is it possible," he asks, "to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner?" Jones, 132 S.Ct. at 958. Alito adds that, "something like this might have occurred in 1791, but this would have required either a gigantic coach, or a very tiny constable, or both-not to mention a constable with incredible fortitude and patience."

Alito questions whether the majority adequately identifies when the "search" occurred, but the heart of his argument is that resurrecting the trespass model returns the Court to the pre-Katz decisions, which proved unworkable once technology enabled electronic surveillance to be accomplished without physical intrusion. He warns the trespass theory provides no protection when long-term monitoring occurs without trespass. He also observes that if the Fourth Amendment is dependent on trespass law, its protections would vary state to state.

Acknowledging that advancing technology will alter society's privacy expectations, he concludes that, "even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable." Id. at 963. Justice Alito points out that privacy concerns may prompt legislation protecting privacy interests, noting that Congress acted to regulate wiretapping after Katz. And he reminds that legislatures are more attuned to public sentiment and better suited to balance society's interests. While Alito notes that most states have not passed such legislation, South Carolina has, see S.C. Code 17-30-140 (Supp. 2010), but that statute expressly incorporates the standards established by the Supreme Court for GPS installation and monitoring. Congress has pending the Geolocational Privacy and Surveillance Act of 2011, S. 1212, 112th Cong. (2011), which would require a warrant to acquire GPS location data.

Applying Katz to the GPS attachment on Jones' car, Alito suggests that relatively short- term monitoring of a person's movements on public streets would not offend Katz, but that the month-long tracking of Jones did. However, he offers no time frame or spectrum that would enable courts to determine when the Fourth Amendment line has been crossed. It is also unclear how the length of government surveillance can suddenly transform police observation into a search, and Alito offers no authority for this principle.

The Sotomayor concurrence

Justice Sotomayor's concurrence-which no other Justice joined-maintains that advancing technology will "affect the Katz test by shaping the evolution of societal privacy expectations." Id. at 955. She argues that unchecked nontrespassory GPS monitoring may "chill[] associational and expressive freedoms" and allow the government to assemble and mine personal data on citizens. She questions "whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on." Id. at 956.

She also questions Justice Alito's assumption that people may stoically accept their "diminution of privacy" as "inevitable." "I for one," she continues, "doubt that people would accept without complaint the warrantless disclosure to the government of a list of every web site they had visited in the last week, or month, or year." Id at 957. Sotomayor cites the anger expressed by OnStar customers when they learned of the company's plans to enable covert surveillance. Whether citizens will buck oppressive user regulations by Internet giants remains to be seen, but recently some 35 state attorneys general formally complained to Google about the company's proposed new privacy policy. And public pressure may be pushing the industry to allow users the option of engaging a "do-not-track" button on their web browsers, as recommended by the Federal Trade Commission. Julia Angwin, Web Firms to Adopt 'No Track' Button, Wall St. J., Feb. 23, 2012, at B1. Consumers may be inspired to further vigilance about their privacy given growing awareness of the extent that major retailers track consumer purchases and staff large "predictive analytic" departments to interpret trends and incorporate the results into targeted marketing strategies. Charles Duhigg, How Companies Learn Your Secrets, N.Y. Times, Feb. 16, 2012, http://www.nytimes.com/2012/02/19/magazine/shopping-habits.html.

Sotomayor suggests that the third-party disclosure doctrine-that one forever sheds any hope of privacy over information voluntarily disclosed to third parties-has been discredited by the digital age and should be discarded. She seems to hint at a model that would allow citizens to retain a reasonable expectation of privacy in their personal data or other information even where that information has been selectively revealed to others. How this would translate into a workable variant of the Katz expectation of privacy test is unclear. It would seem to at least entail principles of contract law, i.e. whether the user of a search engine or e-mail service who accepts the privacy terms is bound by them for Fourth Amendment purposes and, more importantly, whether the government would be bound.

The expected legacy of Jones

What conclusions can be drawn from Jones? First, the Court unanimously rejected the government's claim that one has no reasonable expectation of privacy in his public movements. Second, at least five members of the Court adhere to the trespass model as an additional Fourth Amendment doctrine, and one that adds to the Katz test. Third, it appears that the four Justices aligned with the Alito concurrence would abandon the trespass model and focus instead on Katz. Fourth, these four Justices readily found that short-term, warrantless electronic surveillance of a citizen's public movements does not constitute a search because it traverses no legitimate privacy expectations. Fifth, the opinion is a range field for future Fourth Amendment skirmishes, which will surely involve electronic surveillance where physical trespass is unnecessary. Sixth, the Court did not confront whether the GPS placement was authorized by probable cause or reasonable suspicion, as it found the government had forfeited those arguments.

Curiously, the Court seemed to agree on one unexpressed but fundamental premise: that the trespass and Katz tests are the exclusive Fourth Amendment models. Yet, as one commentator has noted, in recent years the Court has utilized at least five different models in resolving Fourth Amendment cases. Thomas K. Clancy, The Fourth Amendment: Its History and Interpretation465-545 (2008).

The lingering power of Katz

As Alito concedes, the Katz formula suffers from circular reasoning. Justice Harlan made this precise point in his concurrence when scrutinizing the majority's pithy statement that "the Fourth Amendment protects people, not places." What Harlan perceived then still rings true 45 years on: The question, however, is what protection it affords those people. Generally, as here, the answer to that question requires reference to a 'place.' This roundabout feature of Katz routinely causes insuperable problems when implementing it in non-trespassory situations, often placing courts in awkwardly contortionistic postures that make Alito's tiny constable appear relaxed. Head-scratching decisions ensue, such as Illinois v. Caballes, 543 U.S. 405 (2005), which found a canine sniff of a car's exterior that revealed the presence of drugs did not constitute a search because society accords no expectation of privacy to the possession of contraband. The Court will have the opportunity next term to reexamine Caballes in light of Jones when it reviews the ruling of the Florida Supreme Court that a warrantless canine sniff of the front door of a suspected drug house violated the Fourth Amendment. Florida v. Jardines, 73 So.3d 34 (Fla. 2011), cert. granted 132 S.Ct. 995 (Jan. 6, 2012) (No. 11-564).

As Alito also acknowledges, Katz-like any analytical tool that requires judges to gauge objective and subjective expectations-is highly malleable. Thus the allure of Scalia's trespass model, which is inflexibly objective. It prevents courts from diluting fundamental constitutional guarantees based on imperfect predictions of societal norms. This is why Scalia insists on establishing the trespass theory as a "constitutional minimum" that will endure despite Alito's description of our irreversibly receding privacy expectations. This is a theme Scalia carries forth from his opinion in the thermal imaging search case, which he framed as defining "what limits there are upon this power of technology to shrink the realm of guaranteed privacy." Kyllo v. United States, 533 U.S. 27, 34 (2001).

Alternatives to Katz have been proposed, such as a "proportionality" approach that would require the suspicion necessary to authorize a government search to correspond to the degree of intrusiveness. See Christopher Slobogin, Is the Fourth Amendment Relevant in a Technological Age?, in Consitution 3.0: Freedom and Technological Change 23-26 (Rosen and Witters, eds., 2011).

Katz, Jones and the march of technology

The contours of these limits will be refined in upcoming terms. The Court has hinted strongly that individuals have legitimate privacy expectations in their text messages and e-mails. City of Ontario v. Quon, 130 S.Ct. 2619 (2010). Lower federal courts have grappled with the construction and constitutionality of the Stored Communications Act (SCA), which allows law enforcement to obtain certain e-mails from Internet service providers (ISPs) based on less than probable cause and without notice to the account owner. See, e.g., United States v. Warshak, 631 F.3d 266 (6th Cir. 2010) (Because subscriber has reasonable expectation of privacy in contents of his e-mails equivalent that of a letter or telephone call, SCA is unconstitutional to extent it allows government to obtain e-mails from ISPs absent a warrant); compare In Re Application for an Order Authorizing the Release of Historical Cell-Site Information, 809 F.Supp.2d 113 (E.D. N.Y. 2011) (cell site location records sought by government under SCA and spanning 113 days implicate reasonable privacy expectations and may only be obtained with warrant supported by probable cause), with In Re Application for an Order Pursuant to 18 U.S.C. Section 2703(d), Nos. 1:11-DM-3, 10-GJ-3793, 1:11-EC-3, 2011 WL 5508991 (E.D. Va. Nov. 10, 2011) (Twitter user has no legitimate expectation of privacy in IP address and other non-content information).

In the main, courts have compared the contents of e-mails and text messages to private letters and granted them equivalent Fourth Amendment protection. Non-content identifying information such as IP addresses and other routing data is generally unprotected, much like the address on an envelope.

See Orin S. Kerr, Applying the Fourth Amendment to the Internet: A General Approach, 62 Stan. L. Rev. 1005 (2010).

Applying the Fourth Amendment to developing technology can occur in relatively pedestrian settings, such as whether police can conduct warrantless searches of a suspect's cell phone incident to a lawful arrest, compare People v. Diaz, 244 P.3d 501 (Cal. 2011), with State v. Smith, 920 N.E. 2d 949 (Ohio 2009), or more arcane contexts such as data collected by so-called "smart" electrical power meters. Note, Privacy and the Modern Grid, 25 Harv. J. Law Tech. 199 (2011).

D. Garrison "Gary" Hill has served as a resident circuit judge for the 13th Circuit since 2004.