CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, January 23, 2012

Unanimous Court reins in GPS monitoring for different reasons

The case is United States v. Jones. Justice Scalia's opinion for the Court views Katz as supplementing rather than replacing the earlier regulation of physical trespasses by government and relies on the trespass in placing a GPS device on a vehicle to conclude that a search occurred. Justice Alito's opinion concurring in the judgment, joined by Justices Ginsburg, Breyer, and Kagan, objects to the revival of the trespass focus but concludes a search occurred using the Katz test. Justice Sotomayor joined Justice Scalia's opinion but also concurred to agree with much of the Alito opinion.

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The majority essentially punted. The trespass issue was not in question when the case was determined by the D.C. Circuit, or raised in the initial briefs presented by the parties. The supplemental briefs addressed the issue at the request of the Court. Alito's concurrance correctly points out that the real question concerning privacy relates to tracking, not the installation of the GPS. The Court has yet to deal with the emerging concept of "locational privacy", which will grow as an issue with the ever expanding use of technology.

Posted by: John O'Mara | Jan 23, 2012 12:28:04 PM

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