Supreme Court Ruling on GPS Sends Message

Just , we discussed whether the government should be allowed to attach GPS devices to automobiles belonging to criminal suspects without first obtaining a search warrant.

In a poll that accompanied the column, fully 70 percent of those participating in the survey said that the government should not be permitted to attach a GPS device to a car, without first asking a judge or magistrate to issue a warrant.

Yesterday, in a much-anticipated decision, United States v. Jones, the United States Supreme Court took the same position, ruling without dissent that the Fourth Amendment of the Constitution, which prohibits illegal searches and seizures, does not permit governmental authorities to install GPS devices on private vehicles.

Justice Antonin Scalia, writing for the majority, quoted directly from the Fourth Amendment: "The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated."

The majority then makes clear that the act of placing the GPS device on the vehicle without first obtaining permission of the owner amounts to a "trespass." A vehicle is, at minimum, an "effect" and, therefore, when the police attached the device to the vehicle, they encroached on a “protected area.” In such a situation, under the Fourth Amendment the police were permitted to encroach that area only after getting a search warrant, which may be obtained from a judge upon a proper demonstration that probable cause exists to suspect that criminal activity has taken place.

In concurring opinions drafted by Justices Samuel Alito and Sonia Sotomayor, other justices reject the "trespass-based" approach taken by the majority.

The concurring justices suggest that the question is not whether a trespass has occurred, but whether governmental action has taken place that implicates a person's "reasonable expectation of privacy."

The concern here is that the majority's approach might license the government to engage in intrusive activities that do not involve an actual "trespass." One example cited by the concurring justices involved the government activating a vehicle recovery device and tracking the driver's movements. In that case, no trespass to the vehicle would have occurred, thus arguably allowing the government to track the vehicle's movements without a warrant.

Despite the different approaches taken by the justices, the decision sends a signal that both liberal and conservative justices are, and likely will remain, suspicious of un-monitored governmental activity of individuals in our society.

Since we can only imagine what sorts of technologies will be created in the years ahead, it is reassuring to know that our courts are likely to view future efforts to monitor our comings and goings with great suspicion.

Editor's note: Due to a reporting error, an earlier version of this column incorrectly implied that LoJack specifically was referenced in the Supreme Court ruling. The column has been changed to correct this error.