Resurrecting a Property-Based Fourth Amendment Analysis
United States v. Jones (SCOTUS January 23, 2012)
Background. Antoine Jones owned and operated a nightclub in the District of Columbia. He was suspected by the FBI and the DC police of trafficking narcotics. The police used a bevy of investigative techniques like visual surveillance of the nightclub, cameras at the door of the club, a pen register and a wire tap of Mr. Jones' phone. The government applied for a warrant to install on Jones' Jeep Grand Cherokee an electronic tracking device or Global Positioning System (GPS). The warrant authorized installation of the device in DC and was limited to 10 days. Eleven days after the warrant was issued the government installed the device in the State of Maryland. For the next 28 days, the government tracked the vehicle. During that time, the government replaced the battery of the GPS in a public parking lot in Maryland.
The government ultimately brought charges of cocaine trafficking. Jones filed a motion to suppress the evidence obtained pursuant to the GPS. The motion was granted in part and suppressed only evidence that was obtained while the vehicle was parked in Jones' residential garage. The rest was deemed admissible. Jones' trial resulted in a hung jury. The government returned another indictment and the same evidence was used. The evidence linked Jones to $850,000 in cash and 97 kilograms of cocaine. This time, the jury found Jones guilty and he was sentenced to life imprisonment. Jones appealed and the DC Circuit reversed the conviction. The government applied for a writ of certiorari.
The Fourth Amendment Protects Reasonable Privacy Interests and Property Interests too. "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. Const. Am. IV. A vehicle is an "effect" for purposes of a Fourth Amendment analysis. United States v. Chadwick, 433 U.S. 1 (1977). Justice Scalia, writing for the court, explained that the government "physically occupied private property for the purpose of obtaining information." This kind of physical intrusion was a search. Relying on an 18th-century English principle in property and SCOTUS cases predating Katz v. United States, 389 U.S. 347 (1967), the majority held that at a minimum the Fourth Amendment requires the government to get a warrant before physically intruding upon a person's property. The actions by law enforcement clearly intruded upon the person's property. The installation of a tracking device on a vehicle and using that device to monitor its movements is a "search" requiring a warrant. The reason is based not on the reasonable-expectation-of-privacy test from Katz, but rather the older property-based protection against governmental trespass. Thus, the D.C. Circuit should be affirmed.
Justice Alito's Concurrence asks What's Wrong with Katz? Justice Alito agreed that the D.C. Circuit should be affirmed. The government needed a warrant before installing the GPS on Jones' jeep. But he criticized Justice Scalia's analysis that in addition to Katz there is the older protection from governmental intrusion onto another's personal property. Justice Alito accused the majority of applying antedated tort law. "By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels." Justice Alito thought it "unwise" to supplement the Katz formulation with a throwback to property law. Instead, Justice Alito believed that the case should be decided under Katz and only Katz. And under Katz, there is a reasonable expectation of privacy in a person's vehicle when it comes to this kind of long-term monitoring. Justice Alito explained that a hypothetical reasonable person's expectations of privacy change with the influx of new technologies. The expectations are not static. These new technologies like smart phones and the wide dissemination of digital information have shaped the average person's expectations of privacy. What complicates things, wrote Justice Alito, is that "judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person[.]" Here, the 28-day monitoring of a person's vehicle without a warrant violated the reasonable person's expectation of privacy and a warrant was required. Justices Ginsberg, Breyer, and Kagan joined Alito.
Justice Sotomayor's Concurrence. Justice Sotomayor agreed in large part with Justice Alito's analysis. She opened the discussion to the ever-changing concept of privacy in the digital age. There is a lot of information about people that is voluntarily disclosed and put out there into the world, and yet people still consider that information private. She was careful to note that in today's world secret should not be considered the same thing as private. She even hinted that it will be necessary to reconsider whether a person has a reasonable privacy interest in voluntarily-disclosed information. "I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." But these issues should be left for another day. Instead, she agreed with the majority's view that the Fourth Amendment, at a minimum, requires a warrant when the government physically intrudes onto another's property. And so she voted with Justice Scalia.Why Did she do it that way? Justice Sotomayor was the deciding vote in this. Justice Scalia had Justices Kennedy and Thomas, Chief Justice Roberts in addition to her vote. That made it a bare majority of five. She agreed that the physical intrusion was enough to require a warrant. Justice Sotomayor's concurrence does not speak at all to the property-based, pre-Katz approach. In fact, she seems much closer to Justice Alito's opinion. Her vote is baffling. By siding with Scalia's two-test approach--Katz and the old-time trespass--she has clouded the doctrinal waters. Justice Sotomayor could have easily sided with Justice Alito's application of Katz (and only Katz), and have written her concurrence noting that there will come a day when the SCOTUS will have to re-evaluate the reasonable expectations of privacy in voluntarily disclosed information. It would have left this throwback to pre-Katz jurisprudence in the dust. Now, thanks in large part to Justice Sotomayor's concurrence, the property analysis walks again.