Wednesday, March 7, 2012
Caren Myers Morrison (Georgia State University - College of Law) has posted The Drug Dealer, the Narc, and the Very Tiny Constable: Reflections on United States v. Jones (California Law Review Circuit, Forthcoming) on SSRN. Here is the abstract:
This past January, the Supreme Court held unanimously in United States v. Jones that the installation and use of a GPS tracker on a suspected drug dealer’s Jeep constituted a search under the Fourth Amendment. The outcome had been fairly well foreshadowed: at oral argument, the Justices had seemed perturbed by the thought that police could put trackers on cars — even the Justices’s own cars — seemingly at will, and there was a clear thread running through the questions that the practice smacked a little too much of George Orwell’s 1984.
But the reasoning of the case was hotly disputed, with Justice Scalia and Justice Alito penning sparring opinions, and Justice Sotomayor contributing a separate concurrence. Justice Scalia’s opinion for the Court held that monitoring a suspect with a GPS device was a search because, by attaching the device to the car in the first place, the government had committed an act that would have constituted a trespass at common law. Justice Alito argued that the four-week monitoring was a search because it went on for too long.
Amid this confusion, I wish to advance two critiques: First, that the majority opinion’s reliance on common law trespass norms enabled it to avoid making a reasoned normative pronouncement in the inadequately theorized area of electronic surveillance, and second, that its opinion, though claiming to adhere to precedent, did nothing of the kind.
Instead, Justice Scalia formulated a new, trespassory test: a government intrusion constitutes a search under the Fourth Amendment if the intrusion: (a) would have qualified as a trespass at common law, (b) invaded a constitutionally protected area enumerated in the Fourth Amendment, and (c) was committed for the purpose of gathering information. The Katz “reasonable expectation of privacy” inquiry was relegated to back-up status.
But by insisting that the Court need look no further than his trespassory test, Justice Scalia avoided the only important question raised in this case — whether, in today's society, the actions of the police in the Jones case would have constituted a search, regardless of whether there was a trespass.