United States v. Jones and the Shortcomings of Originalist Interpretations of the Fourth Amendment

In United States v. Jones, a GPS tracking device was the focal point of the Fourth Amendment issues in that case.[1] Antoine Jones was a nightclub owner who was suspected of running a drug trafficking ring.[2] A warrant was issued authorizing the installation of a GPS tracking device on a car used by Jones within ten days and within the District of Columbia.[3] The device was installed on Jones’ car in Maryland eleven days after the issuance of the warrant.[4] The data from the device linked Jones to a location where drugs and money were found and resulted in a guilty verdict.[5] The D.C. Circuit reversed the conviction due to the fact that the GPS location data was obtained without a valid warrant.[6]

The Court affirmed the judgment of the D.C. Circuit holding that the “installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”[7] In reaching that conclusion, Justice Scalia noted that there was a “physical intrusion” by placing the GPS device on Jones’ car.[8] The installation of a GPS device on a vehicle constituted a trespass of property consistent with the original understanding of the Fourth Amendment.[9] Thus, evidence gathered from a GPS device without a proper warrant would be inadmissible in court.

In dicta, Justice Scalia noted that without physical intrusion, visual surveillance would be permissible.[10] He posited that it would have been permissible if Jones had been tracked via “traditional surveillance techniques” involving a multitude of investigators because there is no expectation of privacy on the roads.[11] In requiring physical trespass and employing eighteenth century understandings of search and seizure to define Fourth Amendment protections, Justice Scalia reveals the shortcomings of originalism.[12]

Justice Sotomayor wrote in a concurring opinion that “physical intrusion is now unnecessary to many forms of surveillance.”[13] Law enforcement can use devices such as cellular phones, to track the movements of individuals without physical trespass.[14] Some cellular phone carriers collect and retain location data from phone usage through cell towers, creating a historical record of the user’s movement.[15] Location data can be collected through GPS hardware pre-installed in the phones.[16] While mobile carriers do not retain GPS location data, third parties may have historical location data through “check-in” apps available for smartphones.[17] It is also possible to actively track a phone through “pings” from the cellular carrier.[18] None of the above methods involve a physical intrusion of property; under an originalist understanding of the Fourth Amendment such surveillance without a warrant would be permissible.[19]

Currently, customer records can be disclosed to investigators pursuant to the Electronic Communications Privacy Act of 1986 (ECPA).[20] Under the ECPA, law enforcement only needs to show a court “reasonable ground[s] to believe that the . . . [data] sought, [is] relevant and material to an ongoing criminal investigation” to obtain records from mobile providers.[21] Taking advantage of a requirement much lower than the Fourth Amendment’s “probable cause,” electronic surveillance using cellular phones have increased greatly in recent years.[22] The Court was correct in Jonesby holding that the warrantless gathering of evidence from a GPS tracking device was improper. However, abiding by an originalist definition of Fourth Amendment protections may open doors for widespread government intrusions into personal privacy.

[1] See United States. v. Jones, 132 S.Ct. 945, 948 (2012).

[2] See id.

[3] Id.

[4] Id.

[5] See id. at 948-49 (“The Government introduced . . . GPS-derived locational data . . . which connected Jones to the  alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base.”).

[6] See id. at 949.

[7] See id.

[8] See id.

[9] See id. (“The text of the Fourth Amendment reflects its close connection to property . . . . Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century.”). See also U.S. Const. amend. IV (“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause.”).

[10] See id. at 953-54.

[11] Id.

[12] See id. at 953 (“What we apply is an 18th-century guarantee against unreasonable searches.”).

[13] Id. at 955 (Sotomayor, J., concurring).

[14] Id. See also Stephanie K. Pell & Christopher Soghoian, Can You See Me Now?: Toward Reasonable Standards For Law Enforcement Access to Location Data That Congress Could Enact, 27 Berkeley Tech. L.J. 117, 119-20 (2012) (illustrating examples of the use of location data from cellular phones for criminal investigations).

[15] See Pell & Soghoian, supra note 14, at 128.

[16] Id.

[17] Id. at 129.

[18] Id. at 131-32.

[19] See supra notes 10-12 and accompanying text.

[20] See James Temple, Secret surveillance on the rise, SFGate (July 27, 2012, 12:04 PM), http://www.sfgate.com/technology/dotcommentary/article/Secret-surveillance-on-the-rise-3731617.php (“Basically it means a police officer generally can’t open your e-mail or listen in on calls without a warrant, but . . . [the] police can look into what cell phone towers might have caught your signal – in other words, your location.”); Pell & Soghoian, supra at 142 (“Stated simply, a D Order ‘compels [production of] all non-content records.’”).

[21] 18 U.S.C. § 2703(d).

[22] See Temple, supra note 20 (“[E]lectronic eavesdropping under the ECPA has increased sharply since 2006, particularly smartphone tracking.”); Pell & Soghoian, supra note 14, at 121 (“The tool proved so effective that the number of ‘requests’ to carriers for location information grew ‘exponentially’ over the past few years, with major wireless carriers now receiving thousands of requests per month.”).

Author: Kenneth Louis

Kenneth C. Louis is a Managing Editor of the Rutgers Computer & Technology Law Journal. A native of the San Francisco Bay Area, he earned his Bachelor of Arts from California State University, East Bay in 2006. Prior to law school, he worked in industrial sales in Oakland, California while occasionally performing in regional opera companies at night. Currently, he is looking forward to the publication of his article, Reports of its Death are Greatly Exaggerated: eBay, Bosch, and the Presumption of Irreparable Harm in Hatch-Waxman Litigation in the upcoming 2014 volume of the Pace Intellectual Property, Sports & Entertainment Law Forum. He resides in Jersey City with his fiancee.

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