Justice Roberts: Could the Government Track My Car?

The outcome in United States v. Jones may depend on whether the Court fears the asphalt jungle more than the world of Big Brother

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You're driving down the street. Detective Sergeant Joe Friday follows you for a few blocks. Has he violated the Fourth Amendment's ban on "unreasonable searches and seizures"? The courts, and common sense, say no.

Okay, would you find it acceptable if Friday secretly attached a Global Positioning System transmitter to your car and use a computer to track everywhere it goes, 24 hours a day, for a month?

No? What have you got to hide?

Your reactions are actually relevant, because under Fourth Amendment precedent, a "search" occurs when the government invades a "reasonable expectation of privacy" -- either in the home or in any place where a citizen might reasonably think he or she was protected from observation. The Supreme Court today wrestled with a difficult question: do most Americans think we live in the carefree days of Joe Friday on stake-out or in the dystopian future of Person of Interest?

If GPS surveillance is a search, when does it become unreasonable?

The story you are about to read is true. The FBI and the DC Police gathered enough evidence against Antoine Jones to get a warrant allowing them to attach a GPS to Jones's wife's car, where it issued position data for 28 days, mapping the car's visits to a "stash house" where the drug shipments were kept. Eventually, the information led to the seizure of "approximately 97 kilograms of powder cocaine, almost one kilogram of crack cocaine, approximately $850,000 in cash, and various items used to process and package narcotics." A jury convicted Jones of conspiracy to distribute narcotics.

But the warrant was good for ten days. Joe Friday & Co. waited 11 days to attach the GPS; and they also did it in Maryland, where the DC judge had no jurisdiction. The prosecution sought admission of the GPS evidence without a warrant. The trial court allowed it, but the D.C. Circuit reversed the conviction, holding that four weeks of warrantless GPS surveillance is too much.

Hard cases famously make bad law; but an easy case like Jones's can distort the resulting rule as well. The government is asking the Supreme Court to hold that putting a GPS on a car isn't really a "search" at all, since it's "no more" than 28 days of Joe Friday on stakeout. If so, of course, the government can use a GPS on any of us, with or without any suspicion that we've done anything wrong. A "low cost, real time GPS tracker with advanced features" will run you just $59.99 on amazon.com. If you don't need a warrant, you can stick trackers on a lot of cars, and raw computer power will give you a picture of many people's lives -- where they shop, where they worship, who they're sleeping with.

That, argue Jones's lawyers in their brief to the Court, "poses harrowing threats to personal privacy and security-- threats that have until now existed only in dystopian novels."

But in Fourth Amendment law, something either is a search or it isn't. In order to be a "search," we must have a "reasonable expectation of privacy." A phone booth (here's a picture for young readers who may never have seen one) is such a place (Clark Kent even used to change clothes there); a public street is not.

The nine Justices of the Supreme Court, for all their manifold excellences, are not futurists. (The Court still gives lawyers who argue before it a quill pen as a souvenir, and each Justice still has a spittoon at his or her feet during argument.) In the argument today, they had to guess at the direction in which technology is taking us, and at how people feel about it.

Early in the session, Chief Justice Roberts asked Deputy Solicitor General Michael Dreeben the question on all nine of their minds: "You think there would ... not be a search if you put a GPS device on all of our cars, monitored our movements for a month?"

"The Justices of this Court?" Dreeben asked cautiously.

"Yes," Roberts said.

Dreeben said "the Justices of this Court when driving on public roadways" have no reasonable expectation of privacy.

"So," Roberts said, "your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?"

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Garrett Epps is a contributing writer for The Atlantic. He teaches constitutional law and creative writing for law students at the University of Baltimore. His latest book is American Justice 2014: Nine Clashing Visions on the Supreme Court.

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