United States v. Jones (2012)
565 U.S. ___ (2012)
Oral arguments are available at: http://www.oyez.org
Vote: 9 (Alito, Breyer, Ginsburg, Kagan, Kennedy, Roberts, Scalia, Sotomayor, Thomas)
Opinion of the Court: Scalia
Concurring Opinion: Sotomayor
Opinion Concurring in Judgment: Alito
Antoine Jones was the owner of Levels, a nightclub in the District of Columbia. The FBI and the Metropolitan Police Department suspected him of cocaine trafficking, and as part of their investigation, law enforcement officers kept Jones and his nightclub under visual surveillance, installed a camera near the nightclub, used a device to register the phone numbers of anyone calling Jones or receiving phone calls from him, and installed a wiretap on Jones’s cell phone. The telephone surveillance and tapping required a warrant, which the police obtained.
In addition, the officers secured a warrant authorizing them to install covertly and to monitor a GPS tracking device on a Jeep Grand Cherokee registered to Jones’s wife but used exclusively by him. The warrant required that the GPS device be installed within a 10-day period and in the District of Columbia. Contrary to these requirements, the officers installed the device on the undercarriage of the Jeep on the 11th day while the car was parked in Maryland. Later they changed batteries on the device while it was parked in another public parking lot in Maryland. For this reason, both sides to this dispute agreed that the use of the GPS device was technically “warrantless.”
The GPS remained on the car for 28 days, all the while tracking the Jeep’s movement and locations. Over this 4-week period, the device transmitted to police computers more than 2,000 pages of data on the car’s movements, but the device could not tell police who was driving, if there were passengers, or what the driver and passengers did in the car or at their destination. The police were especially interested in the car’s movement to a suspected drug stash house in Fort Washington, Maryland.
From intercepted phone calls, police learned that Jones was expecting a shipment of cocaine in October 2005. On October 24, police executed search warrants for a number of locations. They recovered a large amount of cash, cocaine, weapons, and drug paraphernalia from the car and the stash house that resulted in multiple criminal charges against Jones.
After an initial trial ending in an acquittal on some charges and a deadlocked jury on others, Jones was indicted on a new charge of conspiracy to distribute cocaine. Over Jones’s objections, the judge allowed the information collected by the GPS device to be admitted as evidence. Jones was convicted and sentenced to life in prison. He also was ordered to forfeit $1 million in drug proceeds. The Court of Appeals for the District of Columbia, however, reversed the conviction on the grounds that the warrantless use of the GPS device to monitor the movement of the automobile for a month violated the search and seizure provisions of the Fourth Amendment. The United States requested Supreme Court review of that decision.
JUSTICE SCALIA DELIVERED THE OPINION OF THE COURT.
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. . . .
The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. We hold that the Government’s 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.”
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. . . .
The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States (2001). Thus, in Olmstead v. United States (1928), we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants.”
Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States (1967), we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy.”
The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo . . .
. . . Katz . . . established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” As Justice Brennan explained in his concurrence in [United States v.] Knotts , Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter (1998). Katz did not narrow the Fourth Amendment’s scope. . . .
. . . [T]he Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. . . .
The concurrence begins by accusing us of applying “18th-century tort law.” That is a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed. . . .
. . . [U]nlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis. . . .
The judgment of the Court of Appeals for the D.C. Circuit is affirmed.
It is so ordered.
JUSTICE SOTOMAYOR, CONCURRING.
I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, “[w]here, as here, the Government obtains information by physically intruding on a constitutionally protected area.” In this case, the Government installed a Global Positioning System (GPS) tracking device on respondent Antoine Jones’ Jeep without a valid warrant and without Jones’ consent, then used that device to monitor the Jeep’s movements over the course of four weeks. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and undoubtedly entitled to, Fourth Amendment protection. See, e.g.,Silverman v. United States (1961).
Of course, the Fourth Amendment is not concerned only with trespassory intrusions on property. See, e.g., Kyllo v. United States (2001). Rather, even in the absence of a trespass, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.” In Katz, this Court enlarged its then-prevailing focus on property rights by announcing that the reach of the Fourth Amendment does not “turn upon the presence or absence of a physical intrusion.” As the majority’s opinion makes clear, however, Katz’s reasonable-expectation-of-privacy test augmented, but did not displace or diminish, the common-law trespassory test that preceded it. Thus, “when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” United States v. Knotts (1983) (Brennan, J., concurring in judgment). Justice Alito’s approach, which discounts altogether the constitutional relevance of the Government’s physical intrusion on Jones’ Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. By contrast, the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs.
The reaffirmation of that principle suffices to decide this case. . . .
. . . I therefore join the majority’s opinion.
JUSTICE ALITO, WITH WHOM JUSTICE GINSBURG, JUSTICE BREYER, AND JUSTICE KAGAN JOIN, CONCURRING IN THE JUDGMENT.
This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. . . .
This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.
I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove. . . .
The Court’s reasoning in this case is very similar to that in the Court’s early decisions involving wiretapping and electronic eavesdropping, namely, that a technical trespass followed by the gathering of evidence constitutes a search. In the early electronic surveillance cases, the Court concluded that a Fourth Amendment search occurred when private conversations were monitored as a result of an “unauthorized physical penetration into the premises occupied” by the defendant.Silverman v. United States (1961). . . .
By contrast, in cases in which there was no trespass, it was held that there was no search. Thus, in Olmstead v. United States (1928), the Court found that the Fourth Amendment did not apply because “[t]he taps from house lines were made in the streets near the houses.” . . .
This trespass-based rule was repeatedly criticized. . . .
Katz v. United States (1967) finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation. Katz involved the use of a listening device that was attached to the outside of a public telephone booth and that allowed police officers to eavesdrop on one end of the target’s phone conversation. This procedure did not physically intrude on the area occupied by the target, but the Katz Court, “repudiate[ed]” the old doctrine, Rakas v. Illinois(1978), and held that “[t]he fact that the electronic device employed . . . did not happen to penetrate the wall of the booth can have no constitutional significance.” What mattered, the Court now held, was whether the conduct at issue “violated the privacy upon which [the defendant] justifiably relied while using the telephone booth.” Katz.
Under this approach, as the Court later put it when addressing the relevance of a technical trespass, “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” United States v. Karo (1984). . . .
Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.
Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users. . . .
In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. . . .
. . . The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.
Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.
For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed.