As you likely know by now, the Supreme Court held in United States v. Jones that a warrant is required to attach a GPS device to a car. While all Justices concurred in the result, there were three opinions issued. The court did not line up along political lines, but rather split (to a certain degree) along interpretive lines. The opinion of the court, which takes a somewhat originalist approach, was written by Scalia, joined by Roberts, Kennedy, Thomas, and Sotomayor. Sotomayor also wrote a concurring opinion, in which she noted that the more difficult questions suggested in the case did not need to be resolved to decide the case in front of the court. More broadly, Justice Alito concurred in the judgment, joined by Ginsburg, Breyer, and Kagan. Justice Alito analyzed the issue “by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” This split, as well as the majority’s grounding of its decision on physical intrusion (which is likely to be less necessary with modern technology), means that this is almost certainly the first of a long line of Supreme Court cases wrestling with GPS surveillance.
Scalia’s opinion was base in large part on the fact that the GPS device had been physically attached to the car, thus invading the property rights of the defendant. He believed that this trespass violated a minimum guarantee of the Fourth Amendment sufficient to resolve the case. Interestingly, however, he was clear that the opinion did not purport to “make tres¬pass the exclusive test.” Judge Alito thought that attempting to ground a privacy analysis in 18th Century law was unwise; he rejected Scalia’s analysis of the 18th Century understanding of the Fourth Amendment as it related to trespass as a floor, and argued that any analysis should be based on reasonable expectations: “This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique . . . . By attaching a small GPS device to the under¬side of the vehicle that respondent drove, the law enforce¬ment officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. 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.”
Finally, Alito appears to have taken a commanding lead in any contest for the funniest line in a Supreme Court opinion with his footnote addressing a 18th Century equivalent of a GPS tracker, quoted in part in the title to this post.
