SCOTUS decided United States v. Jones today.  This is the GPS placed on the car case.  I had a GPS device case some years ago, so it could happen in a court-martial case.

Scalia writing for the court begins.

We decide whether the attachment of a Global Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.

— It is as covered search the court concludes.  The holding is limited to placement of a device on the car.  The ruling does not address other tracking methods, such as through cell-phone technology.

Sotomayor writes in concurrence; while Alito writes for himself and Ginsburg, Breyer, and Kagan, concurring in the judgment.

Read the opinion, especially the concurrences carefully.  Part of the result here depends how you view the facts and also that the government never raised a theory of admissibility that perhaps might have caught a dissent.

Here is a link to the Orin Kerr article referenced.

The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution

Orin S. Kerr, George Washington University – Law School
Michigan Law Review, Forthcoming

Abstract:
This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.
The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.
Second, legislative privacy protections are significantly stronger than most commentators appreciate. The case of wiretapping is instructive. While Fourth Amendment scholars often view wiretapping as a constitutional field under Katz v. United States and Berger v. New York, wiretapping has long been a primarily statutory field. Even today, wiretapping practice is governed by statutory commands, not constitutional ones. More broadly, Congress has created a wide range of statutory privacy laws that protect privacy in developing technologies where the courts have declined to offer protection.
Third, legislatures have considerable institutional advantages that enable the legislative privacy rules regulating new technologies to be more balanced, comprehensive, and effective than judicially created rules. Rapid technological change makes it difficult for courts to clarify the law. Courts also lack the institutional capacity to readily appreciate existing technology and the impact of different legal rules. In contrast, courts are well equipped to respond to technological change in the context of criminal procedure rules.

4 Responses to “In the Supremes”

  1. stewie says:

    Would seem this has direct bearing on the urine case who’s name escapes me in discussing reasonable expectation of privacy, since that is no longer the end all, be all of 4th amendment jurisprudence.

  2. Phil Cave says:

    Here is a link to Tom Goldstein on this case:

    http://www.scotusblog.com/2012/01/reactions-to-jones-v-united-states-the-government-fared-much-better-than-everyone-realizes/

    As I said above read this case carefully for what it does, but also what it doesn’t say.

  3. Ringknocker says:

    Can’t help but wonder how this kind of case will affect litigation and advocacy for other rights to privacy…for example, is the S.Ct. prepared to cite to this opinion in attempting to explain that it’s okay for a drug dealer to have a reasonable expectation of privacy in the car in which he is transporting massive amounts of narcotics, but a woman who desires an abortion doesn’t get afforded the same rights to privacy in her own body?

    Might be a bit of a stretch, I understand, but I would have a hard time seeing them acknowledge that a cocaine dealer is somehow more entitled to 4th Amendment protections than a law abiding citizen. 

  4. Phil Cave says:

    Three thoughts on U.S. v. Jones, Margot Kaminski, at Concurring Opinions. http://www.concurringopinions.com/archives/2012/01/three-thoughts-on-u-s-v-jones.html

    L
    ook for insights not limited to the GPS case but the treatment of Katz and REP, which might be RIP depending on future cases involving technology.