Could colonial sheriffs have smuggled a tiny constable into a carriage? No, and that's why we can't rely on their legal reasoning.
"The question is whether we're going forward to tomorrow," former Vice President Dan Quayle once said, "or whether we're going to go past to the back!"
Justice Antonin Scalia drove his DeLorean forward to the past Monday in an opinion holding that police use of computerized GPS technology to track a suspect's car without a warrant is unconstitutional -- when done under circumstances that the 18th-century British Court of Common Pleas would recognize as constituting "trespass to chattels."
Deciding a case that presents novel and pressing technological issues -- could the government, for example, construct a real-time Person of Interest-style database showing where everyone in the country is at every moment? -- the Court's majority, with Scalia playing the role of kindly Doc Brown, turned to Lord Camden's cogent opinion in Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765): "[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law."
Justice Scalia's opinion -- which was joined by Chief Justice John G. Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor -- focused like a laser on the least interesting or significant aspect of a fascinating case. Writing for five justices, he held that the government loses not because tracking people with a GPS is so intrusive that it should only be done with a warrant -- that issue is left undecided -- but because the police officers physically put something on the defendant's car. Justice Samuel Alito, whose concurrence was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, retorted: "the Court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation)." The actual physical act of attaching a tiny transmitter is so minor that it would not, under today's law, be regarded as a trespass, Alito said.
Antoine Jones, you may recall, was suspected of moving major weight in the Washington, D.C., drug market. A joint FBI-DC Police task force got a ten-day warrant allowing them to put a GPS transponder on his (actually his wife's) car to track his movements, hoping their pattern would reveal the location of his stash house. Alas, the officers then waited eleven days -- and to make matters worse, affixed the transponder in Maryland, where the magistrate had no jurisdiction. So the warrant was no good.
The feds monitored the car's movements for 28 days; when the bust went down they found more than 200 pounds of cocaine, a kilo in crack, nearly a million in cash -- and also some really incriminating stuff. The phrase "dead to rights" comes to mind. At trial, however, Jones objected to the seized items as "fruit of the poisonous tree" -- in this case, the warrantless "search" of his whereabouts.
Faced with losing the case, the government argued that GPS tracking is not a "search" at all -- no warrant, no suspicion, no investigation needed. At oral argument, Chief Justice John Roberts asked Deputy Solicitor General Michael Dreeben whether it would be a search "if you put a GPS device on all of our cars" (meaning the nine members of the Court).
Dreeben said it would not. After that, it seemed to be mainly a question of how the government would lose, not whether. And this week, sure enough, the tally was Jones 9, Big Brother 0.