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...