The outcome in United States v. Jones may depend on whether the Court fears the asphalt jungle more than the world of Big Brother
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?
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?"
Dreeben said yes.
Justice Breyer noted that under the government's rule, "there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States. ... So if you win, you suddenly produce what sounds like 1984 from their brief."
Dreeben tried to duck: "This case does not involve 24-hour surveillance of every citizen of the United States. It involves following one suspected drug dealer as to whom there was very strong suspicion."
"You're moving away from your argument," interrupted the Chief. "Your argument is you can do it, period. You don't have do give any reasons."
Justice Sotomayor then asked whether Dreeben had not just described a "general warrant," the open-ended documents that the British used during the years before the Revolution. "What motivated the Fourth Amendment historically was the disapproval, the outrage, that our Founding Fathers experienced with general warrants. ... How is this different?"
Scalia, throwing the drowning man a rope, wondered whether "we have any legislatures that could stop this stuff."
Dreeben scrambled for relative safety. "The legislature is a safeguard, and if this Court believes that there needs to be a Fourth Amendment safeguard as well, we have urged a fallback position that the court adopt a reasonable suspicion standard." On the other hand, "if this Court concludes, consistent with its earlier cases, that this is not a search yet all Americans find it to be an omen of 1984, Congress would stand ready to provide appropriate protection."
Arguing for Antoine Jones, Stephen C. Leckar suggested that "this case could be resolved on a very narrow basis"-- the installation of the GPS without a warrant was a "seizure" of the car. How was it a "seizure"? Scalia asked. To "seize" something, "you have to bring something within your control."
Leckar responded that "what has been seized is Antoine's data."
Would Jones accept the "reasonable suspicion" standard? Justice Breyer asked.
As Jones's lawyer, Leckar couldn't agree to a "reasonable suspicion" rule -- under that rule, however balanced, Jones would lose. No, he said, warrants are needed. "Society does not view as reasonable the concept that the United States government has the right to take a device that enables them to engage in pervasive, limitless, cost-free surveillance, that completely replaces the human equation."
"If somebody goes to London," Justice Kagan noted, "almost every place that person goes there is a camera taking pictures, so that police can put together snapshots of where everybody is all the time. So why is this different from that?"
Leckar said, "It's pretty scary."
Scalia pounced. "Well, it must be unconstitutional if it's scary."
Alito asked the question every judge is waiting for. If GPS surveillance is a search, when does it become unreasonable? "Where would you draw the line?"
Leckar eventually responded, "The simplest rule that should be adopted is this: ... Because of their capacity to collect data that you couldn't realistically get; because of the vanishingly low cost; because of their pervasive nature, you must get a warrant any time you're going to attach a GPS to a citizen's effect or to a citizen's person."
Even for three minutes? Roberts asked.
"Yes," said Leckar.
In rebuttal, Dreeben reminded the Court that "this case does not involve universal surveillance of every member of this Court or every member of the society. It involves limited surveillance of someone who was suspected of drug activity."
The result may depend on which dystopia the Court fears more -- the pitiless world of constant surveillance that might flow from use of GPS or the potential anarchy of a drug-ridden District of Columbia (the Court's home) if even one Antoine Jones goes free. In any case, this is unlikely to be the end of the issue, as Justice Scalia suggested at the end of Leckar's argument.
"Why isn't this precisely the kind of problem that you should rely upon legislatures to take care of?" Scalia asked.
"In this particular case," Leckar responded, "I could probably give you 535 reasons why not to go to Congress."
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