The road from Jones: the requirement of reasonableness for a GPS search of a vehicle.

Author:Elgart, Courtney
Position:Global positioning system
 
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  1. INTRODUCTION

    How much information can a person learn about you just by knowing where you have been in your car? Do you have a medical condition? Do you make frequent trips to the doctor's office? To an oncologist? Planned Parenthood? To a pharmacy to pick up medication? Are you having financial troubles? Have you visited a pawn shop? Pay day loan store? Have you taken extra trips to the bank to try to refinance your mortgage? Are there guilty pleasures you would rather not share? Did you visit a cigar bar, racetrack, strip club, an hourly motel? Are you politically active? Did you go to a campaign headquarters? To a protest? (1)

    In isolation, location data reveals minimal information about an individual. En masse, it can paint a portrait revealing deeply personal insights. (2) A Global Positioning System ("GPS") device records its location every five to ten seconds. (3) Over the course of one day, a GPS device could produce approximately 8,000 to 17,000 data points. (4) Those data points include the device's latitude, longitude, altitude, and a time stamp. (5) Multiply that amount of data points collected by days and weeks, and a substantial mass of data is collected. The potential of location information--collected and aggregated over days, weeks, or months--to intrude on an individual's privacy is critical in considering what should be required when the government wants to install a GPS device on a car and track its movements.

    The Fourth Amendment protects against unreasonable searches and seizures. (6) The baseline requirements for a search to be reasonable are probable cause and a warrant. (7) However, the Court has found in certain instances, where there are lowered privacy interests at stake and where special needs militate against a warrant requirement, that a search can be reasonable without a warrant or even with less than probable cause. (8) In United States v. Jones, the Court held that installing a GPS on a vehicle and using it to track the vehicle's location is a Fourth Amendment search. (9) However, the Court explicitly left open what is required to make a GPS search (10) of a vehicle reasonable. (11)

    This Note argues that a warrant and probable cause are required to make a full GPS search--one in which law enforcement installs a GPS on a vehicle and uses the GPS to track the vehicle's movements--reasonable under the Fourth Amendment, but that probable cause alone is sufficient for the government to install a GPS device. Part II explains the Jones decision as well as its place in a broader conversation about how to adapt Fourth Amendment jurisprudence to new technology. Part III surveys district and circuit court treatment of the question of what makes a GPS search reasonable. Part IV explains how the reasonableness inquiry should be conducted, arguing that the balancing test applicable in the Katz search context should be used to evaluate the reasonableness of a search under Jones. Part V argues that the governmental interest in conducting a GPS search is insufficient to support abandoning a warrant requirement. Part VI explains how GPS works and argues that the Fourth Amendment interests at stake are significant. Part VII contends that the car search exception to the warrant requirement is limited to searches for physical items and does not apply to GPS searches. Part VIII argues that the mobility of a car creates obstacles for the government in conducting a GPS search and those obstacles should be addressed by allowing the government to install a GPS device with probable cause while still requiring a warrant for the government to track an individual's movements.

  2. THE JONES CASE

    In Jones, law enforcement used GPS to track Antoine Jones's car for twenty-eight days as part of their investigation into Jones and others for drug trafficking. (12) The GPS produced over 2,000 pages of data. (13) After a first trial resulted in a hung jury, the second trial resulted in a conviction of Jones for conspiracy to distribute cocaine. (14) The GPS data was critical to the conviction because the government had no direct evidence that Jones had participated in any drug transactions or ever possessed drugs. (15) The prosecution used GPS data with phone records to connect Jones to a stash house where drugs and money were confiscated. (16)

    1. The D.C. Circuit's Decision In Maynard

      The district court rejected Jones's argument that the GPS search violated the Fourth Amendment. (17) The D.C. Circuit reversed, holding that the installation and use of the GPS was a search because it invaded Jones's reasonable expectation of privacy. (18) The D.C. Circuit rejected the government's argument that United States v. Knotts (19) controlled. (20) In Knotts, the Court held that there was no Fourth Amendment search where the government tracked an individual's location with a beeper. (21) The Knotts Court had no occasion to conduct a trespass analysis because the beeper had been installed in a container with the owner's approval and therefore no trespass had occurred. (22) Additionally, the Court held that the tracking of an individual's movement on public roads and in open fields did not intrude on any reasonable expectation of privacy. (23) The D.C. Circuit distinguished Knotts because it involved short-term monitoring of a discrete trip. (24)

      The D.C. Circuit also rejected the argument that Jones's movements were not protected because he knowingly exposed them to the public, reasoning that the chance of someone tracking him at all times over a twenty-eight-day period is "not just remote, it is essentially nil," (25) and that, while each movement was itself in public view, the sum of the information gathered was greater than and different from its component parts. (26) The D.C. Circuit further rejected the government's argument that Jones's expectation of privacy was unreasonable because it was on public roads (27) and distinguished GPS surveillance from visual surveillance because of the differences in the practical obstacles to each. (28)

    2. The Jones Majority Opinion

      The Supreme Court affirmed the ruling, but the majority opinion found the search occurred because the government trespassed on constitutionally protected property with the intent to collect information. (29) The Court reasoned that a vehicle is an "effect," one of the enumerated areas of protection in the Fourth Amendment. (30) The Fourth Amendment has long been understood to "embody a particular concern for government trespass upon the areas ... it enumerates." (31) And, that at the time of the framing of the Fourth Amendment, it was understood that a trespass for the purpose of collecting information was a search. (32)

      Prior to Jones, the Court's Fourth Amendment analysis was dominated by the 1967 case Katz v. United States, (33) In Katz, the Court moved away from analyzing whether a search occurred based on whether a trespass occurred. (34) Instead, the Court held that a search was measured by a governmental activity's intrusion on a person's privacy interest. (35) The Katz Court declared, "[T]he Fourth Amendment protects people, not places." (36) Jones resurrected the trespass analysis. (37) The Court explained that the Katz search analysis supplemented, and did not replace, the trespass analysis. (38) After Jones, whether a Katz search occurs is not dispositive because "[a]t bottom, we must 'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.'" (39)

    3. The Sotomayor Concurrence

      Justice Sotomayor joined the majority's opinion but also wrote a concurrence. Her concurrence argued that the protection afforded by the majority's trespass test was "an irreducible constitutional minimum." (40) However, Justice Sotomayor also suggested that both long-term and short-term GPS surveillance implicate privacy interests protected by Katz. (41) Justice Sotomayor focused on the type of information that GPS surveillance can reveal about an individual, including their "familial, political, professional, religious, and sexual associations." (42) Further, Justice Sotomayor was concerned with the potential that unconstrained governmental power to surveil through GPS could chill "associational and expressive freedoms," be susceptible to abuse by the government, and "alter the relationship between citizen and government in a way that is inimical to democratic society." (43) Finally, Justice Sotomayor called generally for a reconsideration of linking privacy to secrecy through the third party doctrine, (44) finding this approach "ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks." (45)

    4. The Alito Concurrence

      Justice Alito, writing for himself and three others (46) rejected the majority's trespass test. (47) Instead, Justice Alito focused on the Katz test, asking whether Jones's "reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove." (48) He derided the majority for focusing on "something that most would view as relatively minor" (the installation) and "largely disregard[ing] what is really important (the use of a GPS for the purpose of long-term tracking)...." (49) For Justice Alito, the operative fact was the duration of the monitoring. He noted he would find that "relatively short-term monitoring of a person's movements on public streets" is not a search. (50) However, Justice Alito argued that long-term monitoring is a Katz search because it goes against society's expectation that the government will not "secretly monitor and catalogue every single movement of an individual's car for a very long period." (51) Justice Alito explicitly declined to decide how long is too long for surveillance, finding that the four-week monitoring in Jones was clearly too long, and reserving the question for whether "extraordinary offenses"...

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