U.S. v. Jones: Gear Up for the Sequel

“The Fourth Amendment protects people, not places.” Except when it protects places, which it apparently does sometimes. On Monday, the Supreme Court ruled unanimously that the government’s placement of a GPS device on the defendant’s car in United States v. Jones was a search, and without a warrant, was unconstitutional.

The hair-splitting, however, begins on page one and continues through the entire opinion. Calling this decision “unanimous” is pushing it.

Justice Scalia, writing both for the Court and for himself, focused his analysis, like a laser beam, on common law trespass. Because police had to trespass onto the defendant’s property by touching the car in order to attach the GPS device, the search was unconstitutional. This conclusion is not that surprising, as Justice Scalia showed, in Kyllo v. United States, a penchant for taking the property-based view of the Fourth Amendment that the Court decried in Katz v. United States. The opinion is more surprising, though, because it leaves unanswered the questions over which criminal procedure nerds had been salivating since last year.

Justice Alito, concurring in the judgment with the motley crew of Justices Kagan, Ginsburg, and Breyer, correctly observes that electronic surveillance increasingly does not require a physical trespass to the chattel in question. Justice Scalia’s opinion ensures only that the Court will have to revisit this issue in a case where there is a boatload of warrantless GPS tracking, but no trespass. For example, may Apple or AT&T grant police access to a subscriber’s GPS information, allowing the police to track him? May OnStar do the same thing with the GPS built into my car? The problems we had at the outset of this case go unanswered.

Justice Alito solves this problem by entertaining a substantive analysis of Katz’s second prong: “[S]ociety’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.” Defendants at evidentiary hearings, and appellate lawyers in appeals courts, will seize on Justice Alito’s words for a while, arguing that the minority in Jones, after doing a Katz analysis, found that warrantless GPS tracking is unconstitutional, period.

Justice Scalia’s opinion neatly wraps up Jones, but provides little guidance for the future. Sure, the Court decides the cases before it, but if that were all it did and no more, the Court would be functionally little more than the highest trial court. Part of the Supreme Court’s job is to tie up loose ends; in this consolidated case, there was a circuit split, where the Ninth Circuit found no search and the D.C. Circuit did. At the end of Jones, all we have is a ruling that deals with GPS tracking when there is a trespass. In that narrow situation, the outcome is clear, but the broader question has gone unanswered, left on the side of the road to picked up by another plaintiff.