Concerning Warrantless GPS Installation and Tracking Under the Fourth Amendment
- (1) Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.
- (2) Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
The issue presented in Jones is whether the government can constitutionally install or use a GPS device to track a person’s movements in his vehicle without a warrant under the Fourth Amendment. The government engages in this investigatory technique frequently, and the federal circuits are divided on whether the practice violates the Fourth Amendment.
The Federal Bureau of Investigation (“FBI”) installed a GPS tracking device on Antoine Jones’s car while it was parked in a public lot. The FBI then used the device to track his vehicle’s movements continuously for one month. Jones’s conviction for conspiring to distribute cocaine was partially based on the location data generated by the GPS device. The U.S. Court of Appeals for the D.C. Circuit reversed Jones’s conviction in the consolidated case, United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010). The court found that the warantless GPS tracking was a search and violated the Fourth Amendment. The court did not address whether the GPS device’s warantless installation also constituted a search under the Fourth Amendment.
To determine whether a government action constitutes a search under the Fourth Amendment, courts ask whether the investigated person had an expectation of privacy and whether society would view that expectation as reasonable. E.g., Katz v. United States, 389 U.S. 437, 361 (1967) (Harlan, J., concurring); Maynard, 615 F.3d at 555. The D.C. Circuit did not explicitly analyze whether Jones had a subjective expectation of privacy, but it assumed that he did. When analyzing this factor, the Supreme Court considers whether a person took outward actions to shield his activity from the public. E.g. , Kyllo v. United States, 533 U.S. 27, 28-29 (2001); Florida v. Riley, 488 U.S. 445, 450 (1989).
The District of Columbia Circuit
The court did explicitly analyze whether society would view Jones’s expectation of privacy as reasonable. One thing courts have considered when analyzing this factor is whether the expectation relates to information that was exposed to the public. E.g. , United States v. Knotts, 460 U.S. 276, 281-82 (1983); Katz, 389 U.S. at 351; Maynard, 615 F.3d at 558. The D.C. Circuit found that Jones’s actions were not actually exposed to the public, even though they all physically took place in public, because “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” Maynard, 615 F.3d at 560. The court also found that the totality of Jones’ movements were not constructively exposed to the public, even though each individual trip took place in public, because “the whole of one’s movements over the course of a month . . . reveals far more than the individual movements it comprises.” Maynard, 615 F.3d at 561-62. Instead, the court recognized that a reasonable person expects each of his movements over the course of a month to remain “disconnected and anonymous.” Maynard, 615 F.3d at 563 (quoting Nader v. General Motors, 253 N.E. 2d 765, 772 (N.Y. 1970)). The court concluded that Jones had a reasonable expectation of privacy in his movements and that the GPS tracking constituted a search under the Fourth Amendment.
The D.C. Circuit distinguished Jones’ facts from those in the Supreme Court’s earlier decision on locational tracking, United States v. Knotts, 460 U.S. 276 (1983). The Court in Knotts ruled that it did not constitute a search under the Fourth Amendment for law enforcement to install a tracking beeper in a can of chloroform and use the beeper to track the car transporting it along public highways for a single trip. The Court held that there was no reasonable expectation of privacy on public roads because the car’s movements were knowingly exposed to the public and could have been observed with the naked eye. Knotts, 460 U.S. at 276-77.
The D.C. Circuit differentiated between tracking a car for a single trip in Knotts and tracking all of Jones’ trips over the course of a month. The court interpreted Knotts to reserve the question of whether a warrant is required for twenty-four hour tracking when the Supreme Court said, “If such dragnet-type law enforcement practices . . . should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Maynard, 615 F.3d at 556 (quoting Knotts, 460 U.S. at 283-84).
The Supreme Court Certiorari Petition
The government argued in its petition for certiorari, however, that the Supreme Court does not take issue with prolonged surveillance and that Knotts should govern the Court’s analysis. In United States v. Karo, 468 U.S. 705, 715 (1984), agents placed a tracking beeper in a can of ether and used it to track the can over five months. Unlike the GPS device that tracked Jones, the beeper in Karo did not track the can for twenty-four hours a day. See, Karo, 469 U.S. at 708-10. The Court held that when the beeper transmitted the can’s location from inside a private residence, a place not subject to visual surveillance, the tracking constituted a search under the Fourth Amendment. Karo, 468 U.S. at 706. The government’s petition interprets the Court’s lack of analysis regarding the length of the monitoring in Karo to indicate that prolonged surveillance does not turn tracking into a search under the Fourth Amendment. Petition for a Writ of Certiorari at 14-15, United States v. Jones, No. 10-1259 (U.S. Apr. 15, 2011).
After the D.C. Circuit overturned Jones’ conviction, the government petitioned the D.C. Circuit to rehear the case en banc. The court denied that petition. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010). The government then petitioned the Supreme Court to hear the case and decide whether using the GPS device to track Jones’ vehicle constituted a search under the Fourth Amendment. The Court granted certiorari on June 27, 2011 and added the question of whether installing the GPS device on Jones’ vehicle violated the Fourth Amendment.
The Supreme Court has also been petitioned to decide the GPS tracking issue in Pineda-Moreno v. United States, but it is holding the petition until Jones is decided. In that case, the government installed a GPS device to the underside of the defendant’s car while it was parked in public and used it to track the car for four months. The Ninth Circuit held that the GPS installation was not a search. The court reasoned that there is no reasonable expectation of privacy in vehicles parked in public places or in the undercarriage of a vehicle because any member of the public could access those areas “to retrieve a lost ball or runaway cat.” United States v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir. 2010). The Ninth Circuit applied Knotts to also conclude that the GPS tracking was not a search because the location information could have been visually attained by following the car. Pineda-Moreno, 591 F.3d at 1216-17. The Ninth Circuit denied a petition for rehearing despite Judge Kozinski’s dissent. United States v. Pineda-Moreno, 617 F.3d 1120, 1121 (9th Cir. 2010).
Justice Scalia – The Opinion of the Court
Justice Scalia delivered the Opinion of the Court, joined by Justices Kennedy, Roberts, Thomas, and Sotomayor, which held 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” under the Fourth Amendment. US v. Jones, 565 U.S. ___ at *3 (2012). The majority opinion made clear that the Government’s physical occupation of “private property for the purpose of obtaining information,” would have been considered a search “within the meaning of the Fourth Amendment when it was adopted.” Id. at *4. Justice Scalia stressed that the holding, while narrow, made clear that the Fourth Amendment, at a minimum, protects from trespassory government searches. Justice Scalia noted that the property-based Fourth Amendment analysis does not foreclose the more expansive “reasonable expectation of privacy” analysis based on Katz v. United States, which has “been added to, not substituted for, the common-law trespassory test.” Id. at *8. Under Justice Scalia’s property-based analysis, the Government’s key tracking cases, US v. Knotts and US v. Karo, were inapplicable and thus not controlling. Justice Scalia rejected Justice Alito’s insistence on an exclusive Katz-based analysis because it would “needlessly lead us into ‘particularly vexing problems’ in the present case.” Id. at *11. Yet, Justice Scalia’s opinion did not forclose such analysis in future cases, and even noted “[i]t may be that achieving the same result [, surveillance of an individual’s location over time,] ]through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.” Id.
Justice Alito – Concurring in the Judgment
A group of four Justices signed an opinion written by Justice Alito, concurring in the judgment but not opinion of Justice Scalia’s majority. The primary thrust of Justice Alito’s opinion is that the majority’s reliance on “18th-century tort law” is ill suited to the current legal and technological landscape. Justice Alito “would have analyz[ed] the question presented in [Jones by asking whether respondent’s reasonable expectation of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” Id. at *2 (Alito, J. concurring in the judgment). The first two portions of Justice Alito’s opinion focused on criticizing Justice Scalia’s use of the property-based Fourth Amendment test. Justice Alito’s opinion then identified four major problems presented by the majority approach, including the “particularly vexing problems [presented] in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked.” Id. at *9. Justice Alito argued that “[t]he Katz expectation-of-privacy test avoids the problems and complications noted above,” but admitted that it is “not without its own difficulties” such as unstable privacy expectations that can change as technology evolves. Id. at *10. Justice Alito noted that “[a]fter Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute.” Id. at *11. Indeed, Justice Alito makes clear that “[i]n circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” Id. at *13. But ultimately, Justice Alito’s opinion held that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” and even though he does not indicate precisely where the line between “short-term” and “long-term” monitoring lies, “the line was surely crossed before the 4-week mark.” Id. at *13.
Justice Sotomayor – Concurring
Justice Sotomayor joined Justice Scalia’s majority, but wrote an individual concurring opinion agreeing with the substance of Justice Alito’s concurrence. This concurring opinion created a sort of dual-majority in the Jones decision. Justice Sotomayor agreed with the majority’s conclusion that the property-based analysis represents an irreducible minimum of Fourth Amendment protection, which is not eliminated by the Katz reasonable expectation of privacy analysis. However, Justice Sotomayor also agreed with Justice Alito’s conclusion that “at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.'” Id. at *3 (Sotomayor, J. concurring). Justice Sotomayor went even further, noting that “cases involving even short-term monitoring … require particular attention” because the “Government can store such records and efficiently mine them for information years into the future …. GPS monitoring is cheap … proceeds surreptitiously, [and] it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.'” Id. at *11. Justice Sotomayor expressed concerns that the Government’s use of such technology might chill “associational and expressive freedoms,” and that it may be inappropriate to entrust “to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse.” Id. at *11-12. Finally, Justice Sotomayor addressed the most pressing issue threatening Fourth Amendment protections: the third party doctrine, which states that “an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Id. at *13. Justice Sotomayor noted that “[t]his approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Id.
EPIC has a particular interest in the impact of new surveillance technologies that have the capacity to enable warrantless, pervasive mass surveillance of the public by law enforcement agents. Such techniques offend the right of individuals to operate vehicles on public roads while maintaining privacy and their right to be free of unreasonable searches. EPIC has routinely urged regulators and courts to take meaningful steps towards protecting the privacy interests of motorists.
In Commonwealth v. Connolly, 454 Mass. 808 (2009), EPIC filed a “Friend of the Court” brief, arguing that the proliferation of police tracking devices “creates a large, and largely unregulated, repository containing detailed travel profiles of American citizens.” EPIC warned that “law enforcement access to such information raises the specter of mass, pervasive surveillance without any predicate act that would justify this activity.”
EPIC also filed comments with the National Highway Traffic Safety Administration, August 13,2004, Docket No. NHTSA-2004-18029, supporting strong privacy safeguards for automobile Event Data Recorders (EDRs), including a clear consumer right to control the collection and dissemination of their driving data.
- Written Opinion – January 23, 2012
- Oral Argument Audio
- Oral Argument Transcript
- Government’s Reply Brief
- EPIC “Friend of the Court” Brief
- ACLU “Friend of the Court” Brief
- Cato Institute “Friend of the Court” Brief
- Center for Democracy and Technology / Electronic Frontier Foundation “Friend of the Court” Brief
- Council on American-Islamic Relations “Friend of the Court” Brief
- Fourth Amendment Historians “Friend of the Court” Brief
- Gun Owners of America “Friend of the Court” Brief
- National Association of Criminal Defense Lawyers “Friend of the Court” Brief
- Owner-Operator Independent Drivers Association “Friend of the Court” Brief
- Rutherford Institute and National Motorists Association “Friend of the Court” Brief
- The Constitution Project “Friend of the Court” Brief
- Yale Law School Information Society Scholars “Friend of the Court” Brief
- Government’s Supreme Court Brief
- Jones’ Supreme Court Brief
- U.S. v. Jones Docket
- Grant of Certiorari (PDF)
District of Columbia Circuit Court of Appeals
- Denial of a Rehearing En Banc for Defendant Jones: US v. Jones, 625 F.3d 766 (D.C. Cir. 2010)
- Opinion Below: US v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)
U.S. District Court for the District of Columbia
Supreme Court Precedent
- Kyllo v. United States, 533 U.S. 27 (2000)
- United States v. Karo, 468 U.S. 705 (1984)
- United States v. Knotts, 460 U.S. 276 (1983)
- Katz v. United States, 389 U.S. 347 (1967)
Other Relevant Cases
- State v. Zahn, 2012 S.D. 19, ___ N.W.2d ____ (2012).
- United States v. Hernandez, 647 F.3d 216 (5th Cir. 2011)
- United States v. Cuevas-Perez, 640 F.3d 272 (7th Cir. 2011)
- United States v. Pineda-Moreno (PDF), 591 F.3d 1212 (9th Cir. 2010)
- United States v. Pineda-Moreno, 617 F.3d 1120 (9th Cir. 2010) (denial of reh’g en banc) (Kozinski, J., dissenting)
- United States v. Marquez, 605 F.3d 604 (8th Cir. 2010)
- United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), cert. granted, United States v. Jones, 2011 WL 1456728 (June 27, 2011).
- United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010)
- United States v. Smith, 387 F. App’x 918 (11th Cir. 2010)
- Unites States v. Garcia, 474 F.3d 994 (7th Cir. 2007)
- United States v. McIver, 186 F.3d 1119 (9th Cir. 1999)
Law Review Articles and Books
- Orin Kerr, The Mosaic Theory of the Fourth Amendment, 110 Mich. L. Rev. (forthcoming 2012).
- Shaun B. Spencer, GPS Monitoring Device Leads the Supreme Court to a Crossroads in Privacy Law, 46 New Eng. L. Rev. On Remand 45 (2012).
- Lenese Herbert, Challenging the (Un)Constitutionality of Governmental GPS Surveillance, A.B.A. Criminal Justice, Volume 26, No. 2 (Summer 2011).
- The Constitution Project, Liberty and Security Committee Statement on Location Tracking (Sept. 12, 2011).
- Alison M. Smith, Law Enforcement Use of Global Positioning (GPS) Devices to Monitor Motor Vehicles: Fourth Amendment Considerations, Congressional Research Service (Feb. 28, 2011).
- Caitlin Emmett, United States v. Pineda-Moreno, Tracking Down Individuals’ Reasonable Expectation of Privacy in the Information Age, 41 Golden Gate U. L. Rev. (2011).
- Kaitlyn A. Kerrane, Keeping Up With Officer Jones: A Comprehensive Look at the Fourth Amendment and GPS Surveillance, 79 Fordham L. Rev. 1695 (2011).
- M. Iqbal & S. Lim, Privacy Implications of Automated GPS Tracking and Profiling, IEEE Technology & Soc’y Magazine (2010).
- Bennett L. Gershman, Privacy Revisited – GPS Tracking as Search and Seizure, 30 Pace L. Rev. 927 (2010).
- Orin S. Kerr, Fourth Amendment Seizures of Computer Data, 119 Yale L.J. 700, 714-15 (2010).
- Adam Koppel, Warranting a Warrant: Fourth Amendment Concerns Raised by Law Enforcement’s Warrantless Use of GPS and Cellular Phone Tracking, 64 U. Miami L. Rev. 1061 (2010).
- Jack M. Balkin, The Constitution in the National Surveillance State, 93 Minn. L. Rev. 1 (2008).
- R. McDonald Hutchins, Tied Up in Knotts? GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409 (2007).
- Christopher Slobogin, PRIVACY AT RISK: THE NEW GOVERNMENT SURVEILLANCE AND THE FOURTH AMENDMENT, University of Chicago Press, Fall 2007
- Jerry Kang & Dana Cuff, Pervasive Computing: Embedding the Public Sphere, 62 Wash. & Lee L. Rev. 93 (2005).
- Julie E. Cohen, Examined Lives: Information Privacy and the Subject as Object, .52 Stan. L. Rev. 1373 (2000).
- Helen Nissenbaum, Protecting Privacy in an Information Age: The Problem of Privacy in Public, 17 Law and Philosophy 559 (1998).