This is my second post on United States v. Jones, the case on GPS and the Fourth Amendment. My first post was here. In this post, I want to explore whether the act of installing the device should count as a Fourth Amendment search or seizure. My bottom line is that I find this a surprisingly difficult and open question: Justices wishing to apply the Fourth Amendment in a way that is consistent with Fourth Amendment text, history, principles, and precedents could plausibly go either way. One implication of this uncertainty is that if the Justices decide to regulate GPS under the Fourth Amendment, focusing on the installation of the device is a much better option than trying to jump into the thicket of issues discussed in my first post about use of the device once installed. At the same time, it’s worth noting two additional wrinkles. The first is the uncertain standard of reasonableness that would follow from a conclusion that installing the device is a search or seizure. The second is the important role of statutory regulation, which may deal with some of the concerns raised by those who want the Supreme Court to construe the Fourth Amendment to sharply limit GPS monitoring.

I. General Principles on Searches and Seizures

Let’s start with first principles, which I will take in large part from this recent article. The general purpose of the Fourth Amendment is to regulate police collection and use of evidence so that police practices are reasonable. Police officers want to collect evidence to bring cases that prosecutors can charge, and they need two distinct types of power to do this successfully. First, they need the power to uncover and expose evidence so they can see it and recognize its importance to criminal cases. Second, they need the power to “freeze” evidence to maintain custody of it, preserve the status quo pending further investigation, and bring the evidence into court for prosecution. The first power is the power to expose what is hidden, and thereby learn facts that were previously unknown. The second power is the power to secure the scene and add to the potential evidence under the government’s control so eventually it can be used in court.

The Supreme Court has interpreted the government’s search power and seizure power accordingly. Under the Court’s cases, a Fourth Amendment search occurs when the government violates a reasonable expectation of privacy, which in turn occurs when the government observes evidence in a private space. The government’s act of exposing the information from the private space so it is in the government’s view is the search. In contrast, a Fourth Amendment seizure occurs when government conduct meaningfully interferes with an individual’s possessory interest in property. The government’s act of taking control of the property is the seizure.

In the Jones case, federal agents approached the defendant’s car when it was in a public parking lot and affixed a GPS device to the undercarriage of the car. We can break that down into two steps: First, the act of approaching the car and then going underneath it to attach the device to the undercarriage; and second, the act of actually affixing the device to the car. The question raised by the first step is whether going underneath the car was a search: Put another way, did Jones have a reasonable expectation of privacy in the undercarriage of his car? The question raised by the second step is whether affixing the device was a seizure: That is, did attaching the device meaningfully interfere with the defendant’s possessory interest?

At the outset, it’s important to understand how the Court dealt with a similar issue in United States v. Karo. In Karo, a drug dealer ordered cans of ether from an undercover informant. Federal agents wanted to track the ether so see where the drugs were being prepared for sale, so they purchased a can, put a radio beeper inside, and then painted it to look like a can of ether. With the consent of the informant, the agents placed the can with the beeper amongst the other cans, which the informant then provided to the defendant. Use of the beeper then revealed the location of the cans. In its opinion below, the court of appeals had held that the can’s coming into the defendant’s possession violated the Fourth Amendment because “[a]ll individuals have a legitimate expectation of privacy that objects coming into their rightful ownership do not have electronic devices attached to them, devices that would give law enforcement agents the opportunity to monitor the location of the objects at all times and in every place that the objects are taken.” But the Supreme Court disagreed. Transferring the can to Karo’s possession was not a search, the Court held, because it did not reveal any information. It was also not a seizure, because “[a]lthough the can may have contained an unknown and unwanted foreign object, it cannot be said that anyone’s possessory interest was interfered with in a meaningful way.”

The facts of the GPS installation in Jones are somewhat different from the facts of the radio beeper installation in Karo. While Karo knowingly received a package of ether that turned out to include a beeper, the FBI approached Jones’s car, went underneath it, and affixed the GPS device to the undercarriage. In the rest of the post, we’ll see if that should make a difference.

II. Is Going Underneath the Car to Install a GPS Device a Fourth Amendment Search?

Let’s now consider whether Jones had a reasonable expectation of privacy in the undercarriage of his car, such that accessing that part of the car was a Fourth Amendment search. To understand this question, it helps to go back to the inside/outside distinction I explained in my prior post. As I discussed there, most of the Supreme Court’s “search” jurisprudence can be explained by the basic idea that the Fourth Amendment protects inside spaces of persons, houses, papers, and effects, while it does not protect that which is exposed to the general public or is out in the open for all to observe. From this perspective, whether installing the device on the car counts as a search boils down to whether going underneath a car to come close up to its undercarriage is entering an inside space or is merely being in an outside space.

I find this a tricky question. Either view seems plausible. On one hand, you could say that the undercarriage of a car is part of the exterior of the car. The undercarriage isn’t an inside part of the car, like the passenger compartment or the trunk, that often stores private things. Rather, it is an exterior part of the car that is exposed to the public. See New York v. Class (“The exterior of a car, of course, is thrust into the public eye, and thus to examine it does not constitute a ‘search.'”) To be sure, it isn’t all that common for members of the public to go underneath cars parked on a public street. But it happens on occasion, such as when a a person drops something that rolls under the car, a person is looking for something lost earlier, or a kid loses a ball that rolls under the car. And more broadly, when you park on a public street or parking lot, you don’t get some kind of temporary ownership of the physical space underneath the car. The space is still public space. When you agree to put your car in public space, you assume the risk that others will access the space underneath your car. See California v. Greenwood (no reasonable expectation of privacy in trash left at the curb).

That’s one approach. But I think you could equally argue the opposite position. You could say that a person’s car is one of their constitutionally protected “effects,” and clearly entry into the private parts of a car violate a reasonable expectation of privacy, see Delaware v. Prouse. The space underneath a car should be deemed a protected space because social norms recognize an exclusive right to that space. Imagine you parked your car in a parking lot, and you later came back and found someone underneath your car just hanging out. You would probably feel that your space was invaded, and that the person better get out from under your car immediately. From this perspective, the underneath of the car is a private space, not a public one: Although it does not reveal much private information, it does reveal at least some, and that’s been thought to be enough in other contexts. See Arizona v. Hicks (“A search is a search, even if it happens to disclose nothing but the bottom of a turntable.”).

II. Cardwell v. Lewis and New York v. Class

If you really want to get into the weeds on the question of whether accessing the undercarriage of the car is a search — and the Internet isn’t running out of electrons, so why not — you can see the uncertainty of the question by noting that the Court has had a very hard time applying the Fourth Amendment to similar types of government efforts to access parts of cars. (If you’re in a hurry, feel free to skip to Part III. ) There are two particularly relevant opinions, and both offer uncertain guidance. The first is Cardwell v. Lewis and the second is New York v. Class

In Cardwell v. Lewis, the police suspected that Lewis was the driver of a car that had rammed another car off the road. The police arrested Lewis and impounded his car. Officers then went to the police impoundment lot to try to match Lewis’s car to the crime scene. The police visually observed the tire tread on Lewis’s car and noted that it matched the tire tracks at the crime scene. They also scraped some paint off Lewis’s car and noted that it matched the color paint found on the victim’s car at the point of contact. The plurality opinion by Justice Blackmun (joined by Burger, White, and Rehnquist) concluded that this was constitutional, but the opinion itself is maddeningly vague on whether the Court thought a search had occurred. Part II of the opinion starts by seeming to indicate that there was no search, as the conduct only involved the exterior of the vehicle. But then the rest of the analysis seems to say it was a search — albeit one that was constitutionally reasonable because the police had probable cause. It’s just hard to tell which doctrinal box Blackmun had in mind. And given that it is only a plurality opinion for four Justices — no other Justices reached the issue — it’s hard to know what to make of the case.

New York v. Class is equally cryptic. An officer pulled over a car and wanted to see the Vehicle Identification Number (VIN) on the car. In more modern cars, the VIN is located at the front part of the dashboard, normally in plain view through the windshield. But Mr. Class, the driver of the car, had placed some papers over the dashboard. So the officer reached in the car and pulled away the papers to see the VIN. The Court’s opinion by Justice O’Connor concluded that this was constitutional, but the exact reason why is rather uncertain. O’Connor’s analysis begins by arguing that there is no reasonable expectation of privacy in a VIN, given how regulated cars are and given that the VIN is usually visible. But this makes little sense: Fourth Amendment doctrine is generally concerned with how the police got to the information, not whether the information has some transcendental value as protected or unprotected. The opinion then concludes that entering the car to remove the papers and see the VIN was a search but a reasonable one, given a balancing of all the factors: The fact that there was no expectation of privacy in the VIN, the fact that the officer only looked where the VIN could be, and the fact that the officer had seen two traffic violations. The Court also adds that although entering the car to remove the papers was a search, neither ” the doorjamb or atop the dashboard [of a car] . . . is subject to a reasonable expectation of privacy.” The end result is a head-scratcher, I think. It’s hard to know exactly what counts as a search and what the framework is for reasonableness.

In my view, the chief lesson of Cardwell and Class is that the Court struggles to apply the inside/outside distinction in the automobile setting. Cops watching a car from afar is clearly outside; the act of physically entering the passenger compartment is clearly inside. But going underneath the undercarriage when the car is on a public parking lot is somewhere between the two, and there are relatively sparse source of authority on where the line should be drawn.

III. The Implications of a Possible Ruling that Installing the Device on the Undercarriage is a Search

So let’s imagine the Supreme Court agrees with the defendant that going underneath the car to install the GPS is a “search,” but then agrees with the government that use of the GPS is not a search. What would the law of GPS surveillance look like? It seems to me that the law would regulate installing devices that are hidden — that is, on the bottom of the car — but would not regulate the Karo situation of a suspect who receives a package containing the GPS. Similarly, the rule would not regulate turning on a GPS device that was built in to the car (as that seems clearly covered by Karo). Further, the Court would then need to reach the interesting and potentially difficult issue of what would make such a search “reasonable.” As we saw in Cardwell and Class, the “search” inquiry is only half the battle: The Court would then have to say when the search of an undercarriage is reasonable, which may not require a warrant. But at the very least the Fourth Amendment would regulate the act of attaching a secret GPS device to a suspect’s car.

Different readers will have different views on whether this avenue is a desirable one for the Court to take. In my view, though, it’s the easiest and most coherent way for the Court to regulate GPS surveillance under the Fourth Amendment beyond the Knotts/Karo line discussed in my previous post. Recall my concerns from my previous post about rejecting the inside/outside distinction. Inside/outside is in many ways the bedrock of the Supreme Court’s “search” jurisprudence. If you reject that, then you need to find an alternative (which proves extremely difficult). But regulating GPS surveillance by focusing on the installation of the device is much easier. It sticks with the inside/outside distinction and simply treats the entry to install the device as an entry “inside” and therefore a search. That approach doesn’t trigger any of the conceptual puzzles that would arise if the Court were to try to regulate GPS usage (as opposed to installation) beyond the Knotts/Karo line.

IV. Is Attaching the GPS Device a Fourth Amendment Seizure?

Now let’s turn to the second major question: Assuming that going underneath the car is not a “search,” is affixing the device to the car a Fourth Amendment “seizure”? In doctrinal terms, does affixing the GPS device significantly interfere with Jones’s possessory interest?

Answering the question requires understanding the nature of a possessory interest, which in turn requires us to understand the legal concept of possession. Possession is the act of knowing control over property. If I have physical property and I control that property, than I possess it. Notably, possession can be constructive. It doesn’t require me to actually have the property in my hands, or in my pockets. Rather, I just need knowledge and control over the property. When you understand that definition, it becomes clear that a Fourth Amendment “seizure” occurs when the government takes control over property. Indeed, as I’ve argued elsewhere, control is the core of the Fourth Amendment seizure power: The power to seize is the power to take control of property so the government can bring it forward for use in Court.

Does affixing a GPS device “seize” any property under that test? I think the better answer is “no.” Attaching a GPS device is creepy, and it raises concerns about Big Brother. From a standpoint of policy, I believe it should be regulated (more on that later in this post). At the same time, installing the device doesn’t actually take control of property. Indeed, the whole point of installing a GPS device is to avoid taking control of the suspect’s property. The hope is that the driver won’t notice the device, and that he’ll stick to his usual schedule so the police can learn the suspect’s modus operandi.

I take this to be the reasoning of United States v. Karo, discussed in Section II. Recall that in Karo, the government put a radio beeper in a can of ether that the suspect wanted. The suspect came into possession of the can without realizing that there was a beeper inside. According to Justice White, this did not amount to a seizure: “Although the can may have contained an unknown and unwanted foreign object, it cannot be said that anyone’s possessory interest was interfered with in a meaningful way.” I find it hard to distinguish Jones from Karo on that point.

In his merits brief, Jones responds by attempting to tie the Fourth Amendment’s “possessory interest” to a more traditional property interest. He reasons that the Fourth Amendment is traditionally linked to property law, which is largely (although not entirely) true, and that a possessory interest includes a right to exclude. Because affixing a GPS device obviously interferes with a person’s right to exclude, it interferes with the possessory interest.

This is an interesting argument, but I don’t find it persuasive. The reason is that possessory interests and property interests are quite different. Possession is knowing control: That does not imply lawful control. Indeed, a large chunk of criminal prosecutions in the United States are for unlawful possession of contraband. If I have a kilo of cocaine in my hands, and the government takes it away, that is the paradigmatic case of a Fourth Amendment seizure. But it does not in any way interfere with a property interest, as one cannot lawfully possess contraband such as cocaine. To make the same point a more conceptual level, the seizure power concerns taking control of property rather than interfering with lawful rights in property. Given that, I think it would be a stretch to say that installing the device constitutes a Fourth Amendment seizure.

V. A Statutory Alternative: The GPS Privacy Act of 2012?

Some proponents of the defendant’s position in Jones start from a policy position: If GPS is left unregulated, then we will enter an Orwellian world in which the government can track its citizens at any time. We don’t want to live in that world, and therefore we need the Court to regulate GPS using the Fourth Amendment. This argument overlooks an alternative method of regulation: a federal privacy statute to regulate GPS surveillance. Different readers will disagree about how much the possibility of statutory regulation should matter, if it all. But I think it’s worth evaluating the likelihood that Congress might act if the Supreme Court doesn’t.

In my view, the chances are pretty good that Congress would act if the Supreme Court rules for the government in Jones. As I explained in a 2004 article, there is a long history of Congress enacting privacy statutes in non-content records, often soon after the Supreme Court rejects Fourth Amendment claims:

A broader look at the legal standards that govern criminal investigations involving new technologies suggests that Congress has often taken the lead, and that judicial decisions interpreting the Fourth Amendment generally have played a secondary role. In some instances, congressional action has followed Supreme Court decisions interpreting the Fourth Amendment. For example, the Court’s decision in the Keith case considering how the Fourth Amendment applies to national security wiretapping helped inspire the passage of the Foreign Intelligence Surveillance Act in 1978. The Court’s conclusion in Smith v. Maryland that the Fourth Amendment did not protect numbers dialed from a telephone (so-called “pen register” information) led Congress to protect such information in 1986, via the Pen Register and Trap and Trace Devices Statute.

Congress has also acted on its own initiative to protect privacy against the threat of new technology. For example, Congress passed the Privacy Act of 1974 to give citizens the right to check and correct information about themselves in government computer databases. Congress protected the privacy of cable television subscribers by passing strict restrictions against the disclosure of their personal information in the Cable Communications Privacy Act of 1984. Two years later, Congress protected the privacy of stored e-mails and Internet communications by passing the Electronic Communications Privacy Act. Two years after that, Congress passed the Video Privacy Protection Act to protect the privacy of video store customers.

Congress has also passed privacy laws outside of the high technology area, often in response to developments in Fourth Amendment law. Congress enacted the Right to Financial Privacy Act to protect the privacy of bank records after the Supreme Court ruled that the Fourth Amendment did not protect such records in 1976. Congress created the Privacy Protection Act of 1980 to offer the press special protections against searches and seizures after the Supreme Court declined to do so in a 1978 case. And this list is not exhaustive; other federal statutory privacy laws exist.

Of course, the legislative enactment of law enforcement regulations beyond the Fourth Amendment does not necessarily mean that these statutory laws are adequate. I have argued both in congressional testimony and in my academic writing that Congress’s handiwork in the field of Internet surveillance law offers a promising framework, but needs reforms to bolster privacy protections. At the same time, Congress’s track record is often ignored by scholars even when statutes provide the most important privacy protection against invasive government practices. Both criminal procedure and privacy law scholars have tended to focus their attention on the Fourth Amendment, overlooking the reality that since the 1960s Congress rather than the courts has shown the most serious interest in protecting privacy from new technologies. Judicial decisions have played a role by shaping legislation, but the real work that has been done to regulate law enforcement use of new technologies has come primarily from Congress, not the courts.

I suspect that would be true with GPS monitoring, as well. Jones has become a high-profile case because untrammeled GPS monitoring is creepy and Orwellian. It’s not a subtle threat to privacy and security: People get it immediately and intuitively. Given that, I think the chances are quite good that Congress would step in and regulate use of GPS surveillance if the Supreme Court stays out. At least one prominent proposal has already been introduced, and I suspect a decision for the government in Jones would push such a bill forward.

Let me end with a broader point: Congress needs to enact a GPS privacy statute even if the Court agrees with the defendant in Jones. No matter how strictly the Court limits the government in Jones, the Court can’t address unauthorized GPS use by private parties. (Remember, the Fourth Amendment only regulates the government.) And over time, I think the greater threat raised by unauthorized GPS monitoring comes from private parties rather than the government. At present, it is not clearly unlawful for a private citizen to place a GPS device on another private citizen’s car. The law is unsettled. But unless private-party GPS surveillance is made illegal, it will become an unfortunately common tool for stalkers, jealous ex-boyfriends, suspicious spouses, business competitors, and anyone else trying to secretly keep tabs on people. The best answer is a federal statute making it a crime for anyone to install secretly a GPS device to monitor another person, and then to make exceptions including government surveillance with a court order.

(Cross posted at the Volokh Conspiracy)

Posted in U.S. v. Jones, Analysis, Featured

Recommended Citation: Orin Kerr, Does installing a GPS device on a car constitute a Fourth Amendment search or seizure?, SCOTUSblog (Oct. 27, 2011, 2:06 PM), http://www.scotusblog.com/2011/10/does-installing-a-gps-device-on-a-car-constitute-a-fourth-amendment-search-or-seizure/