The court hit this one out of the park. While I see Scalia’s point of nuance I agree with Alito that it also covered privacy because the penumbra of the law certainly cast a shadow on the FBI’s violation.
WASHINGTON—The Supreme Court ruled Monday that police violated the Constitution when they attached a Global Positioning System tracker to a suspect’s vehicle without a valid search warrant, voting unanimously in one of the first major cases to test privacy rights in the digital era.
The decision offered a glimpse of how the court may address the flood of privacy cases expected in coming years over issues such as cellphones, email and online documents. But the justices split 5-4 over the reasoning, suggesting that differences remain over how to apply age-old principles prohibiting “unreasonable searches.”
The minority pushed for a more sweeping declaration that installing the GPS tracker not only trespassed on private property but violated the suspect’s “reasonable expectation of privacy” by monitoring his movements for a month. The majority said it wasn’t necessary to go that far, because the act of putting the tracker on the car invaded the suspect’s property in the same way that a home search would.
Justice Antonin Scalia, writing for the majority, said that as conceived in the 18th century, the Fourth Amendment’s protection of “persons, houses, papers, and effects, against unreasonable searches and seizures” would extend to private property such as an automobile.
“The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted,” Justice Scalia wrote, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.
Advocates for privacy said that despite the differences, the court’s unanimity on the outcome sent a strong message.
“This is a signal event in Fourth Amendment history,” said Walter Dellinger, a former acting solicitor general who represented the defendant, Antoine Jones.
The government said Federal Bureau of Investigation agents use GPS tracking devices in thousands of investigations each year. It argued that attaching the tiny tracking device to a car’s undercarriage was too trivial a violation of property rights to matter, and that no one who drove in public streets could expect his movements to go unmonitored. Police were free to employ the tactic for any reason without showing probable cause to a magistrate and getting a search warrant, the government said.
The justices seemed troubled by that position at arguments in November, where the government acknowledged it would also allow attaching such trackers to the justices’ own cars without obtaining a warrant.
Emphasizing the Fourth Amendment’s “close connection to property,” Justice Scalia wrote that even a small trespass, if committed in “an attempt to find something or to obtain information,” constituted a “search” under the Fourth Amendment.
In a surprising departure from the majority, Justice Samuel Alito, a former prosecutor usually known for his law-and-order views, split from fellow conservatives to argue that the search violated an individual’s “reasonable expectation of privacy.”
The court has used that test since 1967, when it held that warrants were required before police could wiretap a call made from a public telephone booth because “the Fourth Amendment protects people, not places.”
Limiting Fourth Amendment protections to trespassing property as understood in 1791 “is unwise” and “highly artificial,” Justice Alito wrote in a concurring opinion, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. “It is almost impossible to think of late-18th-century situations” analogous to placing a GPS tracker on a car, Justice Alito wrote, unless one imagined “a gigantic coach, a very tiny constable, or both.”
With such rapidly advancing technology, the Scalia approach left open “particularly vexing problems,” Justice Alito wrote, particularly when police don’t have to physically touch a vehicle to conduct surveillance. He mentioned automatic toll-collection systems and smartphones that continuously track their own location as examples.
Justice Alito’s concurring opinion suggested that the GPS case had provoked a robust debate within the court over the extent to which the 1967 case, Katz v. U.S., remained good law.
Justice Scalia declined to apply the 1967 standard to this case, but emphasized that the broader approach remained in force.
Justice Scalia wrote that even surveillance without physical trespass may be “an unconstitutional invasion of privacy”—but, he added, there was no need to speculate on such problems until a specific case presented them to the court.
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