FoxNews.com reports that legal experts are divided on whether United States v. Jones requires a warrant to install a GPS device:
Most media reports of the Supreme Court’s decision said the court was requiring police to obtain warrants for attaching GPS devices.
But several experts argued that the court had not in fact ruled that a warrant is now required.
“The court merely held that the installation of the GPS was a Fourth Amendment ‘search,'” George Washington University Professor of Law and computer law expert Orin Kerr wrote on The Volokh Conspiracy website.
“The court declined to reach when the installation of the device is reasonable or unreasonable. So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment ‘search.'”
But other experts have said the court did create a warrant requirement for installing GPS devices. They point to past Supreme Court rulings that held that all Fourth Amendment searches require warrants unless the police action meets a specific and well-delineated exception.
These scholars say that because the court did not create an exception for GPS searches, those intrusions therefore require a warrant.
“Orin Kerr would probably not say that you don’t need a warrant to break down the door of someone’s house,” Priscilla Smith, who is a senior fellow at the Yale Law School Information Society Project, told NewsCore. “He would say you do need one unless one of the exceptions apply. Same is true here.”
Other scholars had views that fell somewhere in between those of Kerr and Smith.
University of Iowa Law School Professor of Law James Tomkovicz told NewsCore that the Supreme Court “dodged” the warrant issue, but said it would be very difficult to persuade courts in the future that police do not need warrants to install GPS devices on automobiles.
“It would be pretty unprecedented for the court to call it a search and then turn around and say you don’t need a warrant or you don’t even need probable cause,” Tomkovicz said.
Lawrence Muir, who teaches a cybercrimes seminar as an adjunct professor at Washington and Lee University School of Law, said that police are now generally required to obtain warrants for GPS attachments after Monday’s decision.
Two thoughts in response. First, to the extent anyone really claims that Jones ruled on whether the police must obtain warrants, the text of the opinion clearly indicates to the contrary:
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in-deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D.C. Circuit therefore did not address it. See 625 F.3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U.S. 51, 56, n. 4 (2002).
The D.C. Circuit concurring opinion referenced above notes that “because the Government did not argue the points, the court did not decide whether, absent a warrant, either reasonable suspicion or probable cause would have been sufficient to render the use of the GPS lawful[.]” Maybe I lack creativity, but I cannot see how anyone — much less an expert — can read the Supreme Court’s discussion here as a ruling that a warrant is required to install a GPS device.
Second, I’m puzzled by the claim that a warrant is obviously or very likely required for GPS surveillance because the Fourth Amendment requires warrants for home searches. The police install GPS devices on cars, not homes. Sure, the Fourth Amendment requires warrants to search homes. But the Supreme Court has always treated searches of automobiles quite differently. The unbroken rule from the first automobile case in 1925 to the present is that searching an automobile requires probable cause but does not require a warrant. This is known as the “automobile exception” to the warrant arequirement.
The Court has justified the different treatment of cars on two grounds. First, cars can be quickly moved. By the time an officer obtains a warrant to search a car, the car might be outside of the court’s jurisdiction; if the car is outside the court’s jurisdiction, the car can’t be searched either as a matter of law or fact. As the Supreme Court recognized as far back as 1925, in language that it has repeated since:
[T]he guaranty of freedom from unreasonable searches and seizures by the Fourth Amendment has been construed, practically since the beginning of Government, as recognizing a necessary difference between a search of a store, dwelling house or other structure in respect of which a proper official warrant readily may be obtained, and a search of a ship, motor boat, wagon or automobile, for contraband goods, where it is not practicable to secure a warrant because the vehicle can be quickly moved out of the locality or jurisdiction in which the warrant must be sought.
Carroll v. United States, 267 U.S. 132, 153 (1925).
The second justification for treating automobile searches differently than home searches is that while searching a car is still a search, cars are simply less private than homes.
Automobiles, unlike homes, are subjected to pervasive and continuing governmental regulation and controls, including periodic inspection and licensing requirements. As an everyday occurrence, police stop and examine vehicles when license plates or inspection stickers have expired, or if other violations, such as exhaust fumes or excessive noise, are noted, or if headlights or other safety equipment are not in proper working order.
The public is fully aware that it is accorded less privacy in its automobiles because of this compelling governmental need for regulation. Historically, individuals always [have] been on notice that movable vessels may be stopped and searched on facts giving rise to probable cause that the vehicle contains contraband, without the protection afforded by a magistrate’s prior evaluation of those facts.
In short, the pervasive schemes of regulation, which necessarily lead to reduced expectations of privacy, and the exigencies attendant to ready mobility justify searches without prior recourse to the authority of a magistrate so long as the overriding standard of probable cause is met.
California v. Carney, 471 U.S. 386 (1985) (internal quotations and citations omitted).
So let’s return to Jones. The Jones majority opinion argues that installing the device with intent to use it constitutes a search of the car. That’s the traditional set of circumstances that trigger the automobile exception. And the rationale of the automobile exception plausibly applies here, too. If the police delay to get a warrant, the car known to be in one place today might be lost tomorrow. A car in one jurisdiction today can be driven outside the court’s jurisdiction in minutes or hours. And if it is a reasonable search to break open a car’s trunk and rifle through a suspect’s private stuff without a warrant, why isn’t it a reasonable search to attach a device to the outside of a car’s frame? Isn’t the placing of the device on the outside of the car less invasive than rummaging through a suspect’s personal items stored in the locked trunk?
To be clear, I’m not arguing that the automobile exception definitely applies to the installation of a GPS device. You can make arguments that it does not.** Maybe those arguments will carry the day, maybe they won’t. But it seems mistaken to me to suggest that the relevant Fourth Amendment precedents strongly point to requiring a warrant to install a GPS device. Under the automobile exception to the warrant requirement, that’s not where the relevant precedents most naturally point.
_______________
** For example, in his opinion concurring in the denial of rehearing en banc, Judge Ginsburg briefly suggested two reasons why the automobile exception didn’t apply. First, Jones’s car was not “readily mobile”; second, the automobile exception only applies to searches for contraband. As for the first reason, it’s hard to know why: If the motor home in Carney was deemed readily mobile, I don’t know why Jones’s car wasn’t, as well. As for the second reason, it”s true that the early cases did limit the automobile exception to contraband instead of mere evidence. But as the Sixth Circuit noted in United States v. Kemper, 503 F.2d 327 (6th Cir. 1974), this limitation reflected the “mere evidence rule” later overturned in Warden v. Hayeden (1967), and is hard to justify post-Hayden. See Kemper, 503 F.2d at 331 (“While it could initially have been said that Carroll is applicable to the search for and seizure of contraband only, the demise of the ‘mere evidence’ rule in Warden v. Hayden, 387 U.S. 294, 87 S.Ct. 1642, 18 L.Ed.2d 782 (1967), would suggest that the distinction between contraband and instrumentalities, on the one hand, and mere evidence on the other, would no longer be a valid limitation on the automobile exception.” See also Arizona v. Gant, 556 U.S. 332 (2009) (articulating the automobile exception as being that”[i]f there is probable cause to believe a vehicle contains evidence of criminal activity, [the automobile excerption] authorizes a search of any area of the vehicle in which the evidence might be found.”) (emphasis added). In my view, a better argument that the automobile exception doesn’t apply would start from the point that the kind of information revealed by GPS surveillance is not information about the inside of the car, but rather about its public location. You could then try to argue that the automobile exception should apply only when the relevant information involves the former not the latter. This isn’t an easy or obvious argument to make, but it might go somewhere.