Supreme Court Year in Review
While you all are dissecting today's opinions, I've been looking at the "orders list." The court announced today that next term it would hear and decide United States v. Jones, a case asking whether the warrantless tracking of vehicles by GPS devices violates the Fourth Amendment. (I should note that I'm working on the case with my former student Stephen Leckar of Shainis & Peltzman, who is counsel of record for Antoine Jones.)
Federal law enforcement officials installed a "global positioning system" device to track every movement Jones, his wife, and his son made in their vehicle for 24 hours of every day for four weeks. The Court of Appeals for the District of Columbia determined that this intensive monitoring of Jones' movements for an extended period of time invaded his reasonable expectation of privacy and thus constituted a search under the Fourth Amendment. Because the government had no valid warrant (and made no showing that the search was reasonable without a warrant) the Court of Appeals reversed Jones' conviction on drug charges.
In its petition asking the Supreme Court to review the case, the solicitor general stated that federal law enforcement agencies "frequently use" GPS tracking devices to follow "leads and tips before suspicions have ripened into probable cause." A requirement that a warrant be obtained from a magistrate before tracking an individual, the government argued, "will seriously impede criminal investigations" in "many scenarios."
The solicitor general's petition focused on the holding of the court below that the tracking violated the Fourth Amendment. While we opposed any review of the decision below, we also suggested to the court that if it granted the government's petition, it should also address an additional question: whether the installation of the GPS device on Jones' car was itself a violation of the Fourth Amendment. As Judge Kavanaugh said in a concurring opinion in the Court of Appeals, this "property-based Fourth Amendment argument" raises "an important and close question." The Supreme Court granted this second question as well, so next term it will be deciding the conceptually separate questions of: 1) whether a warrant is required for the actual secret installation of a GPS device on a person's automobile; and 2) whether a warrant is required for the extended GPS tracking of a person's movements in a vehicle.
The grant of review in this case sets the stage for an extraordinary encounter between the constitutional right against unreasonable searches adopted at the end of the 18th century and the amazing technology of the 21st century. The "Navigational Satellite Timing and Ranging Global Positioning System" was developed in 1978 by the Department of Defense for military use. In 2000, the government decided to make accurate transmissions available for civilian use. And this led, inexorably, to the widespread use of GPS devices in investigations. As my co-counsel Steve Leckar noted in a statement today, "there is nothing inherently wrong with deploying these devices to assist law enforcement. On the other hand, no one can dispute that they are extraordinarily intrusive." The issue is not whether GPS devices can be used by law enforcement, but whether there should generally be the age-old check of an independent magistrate deciding whether the search is justified before such a space-age intrusion takes place.
I'm tracking your progress now. How are you coming on analyzing this morning's opinions?
Walter Dellinger is a partner at O’Melveny & Myers in Washington, D.C. He filed one of the amicus briefs on behalf of a group supporting gay marriage. The views expressed here are his own.