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Why Jones is still less of a pro-privacy decision than most thought (Conclusion slightly revised Jan. 31)

I want to return to Jones for what will probably be my final thoughts on the case for a while.  In earlier posts here and here, I explained why the widespread initial reaction that the Court’s decision in Jones requires the police to get a warrant to install a GPS tracking device was incorrect.

Having reflected more on the decision, I now think that in some respects Jones is still less of a pro-privacy ruling than many people initially thought.  Many early reactions seem to have projected onto the decision what the writer wanted it to hold, rather than what the opinion actually concludes.

In this post, I explain why I think that is true, and address some comments and suggestions that readers have thoughtfully sent me in reaction to my earlier posts.  And because some disagree with my reading of the decision, I’ve departed from the traditional blog approach and included citations throughout.  This is going to take a while.

The Supreme Court’s holding on the defendant’s three theories

As the Supreme Court understood Jones, the defendant had basically three arguments:  (i) installing the GPS device was a search; (ii) tracking him at all was a search (whatever device was used); and (iii) at least tracking him for a long time was a search (again, whatever technology was involved).

The decision concluded that the defendant won on two theories.  The five-Justice majority (per Scalia) ruled for him on a combination of (i) and (ii):  installing the device and using it to monitor the defendant together constituted a search by committing a technical trespass on the defendant’s property right in his car for the purpose of gathering information.  Majority 4 (“The Government physically occupied private property for the purpose of obtaining information.”); id. 12 (this was “a classic trespassory search”).

But according to the majority, neither (i) or (ii) is enough alone; the combination is key.  Majority 3 (“We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search.’”); id. 7 n.5 (“Trespass alone does not qualify, but there must be conjoined with that what was present here:  an attempt to find something or obtain information.”).

Five other Justices (the four members of the Alito concurrence, plus Justice Sotomayor) instead agreed with theory (iii).  They concluded that long-term monitoring violated the defendant’s reasonable expectation of privacy, without regard to the precise technology installed or used by the government.  Alito 13 (“But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.  For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car, for a very long period.”); Sotomayor 3 (“As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations.  Under that rubric, I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’”).

No Justice concluded that the mere intrusion into the car – theory (i) – was a search.

Four Justices (per Scalia) not only explicitly rejected theory (i), but they also strongly suggested they would reject theory (ii) and find that short-term monitoring is not a search.  Majority 7 n.5 (combination of trespass and collection of information is required); id. 8 (recognizing prior precedent as holding that monitoring someone on the public streets is not a search except with respect “to ‘dragnet-type law enforcement practices’ of the type that GPS tracking made possible here”).

Four other Justices (per Alito) explicitly rejected both theories (i) and (ii) and concluded that neither installation nor short-term monitoring is a search.  Alito 2 (“It is clear that the attachment of the GPS device was not itself a search . . . .  And the Court does not contend that the use of the device constituted a search either.”); id. 13 (“Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.”).

Only one Justice (Sotomayor) seemed willing to accept the defendant’s argument that he should prevail outright on theory (ii) – that monitoring for any amount of time was itself a search.  Sotomayor 3 (“In cases involving even short-term monitoring, some unique attributes of GPS surveillance relevant to the Katz analysis will require particular attention.”); id. 5 (“More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.”).

So to summarize, here is the breakdown of how the Court treated the defendant’s three theories:

(i) installation is a search:  government wins 9-0;

(ii) short-term monitoring alone using some technology is a search: government wins 8-1;

(iii) combination of installation and monitoring is a search: defendant wins 5-4;

(iv) long-term monitoring using some technology is a search: defendant wins with at least 5 votes, with the remaining Justices not addressing the issue.

I’ll elaborate on the point below, but it is worth focusing for a moment on the fact that the government prevailed outright and by a very broad majority on the defendant’s first two theories in Jones.

The very limited scope of the Court’s decision

Nonetheless, the defendant did of course win Jones.  So it is important to explore the significance of that victory.

The majority opinion in Jones is very limited.  Its finding of a “search” depends on the government’s intrusion onto the defendant’s property for the sake of gathering information.  In reaching that conclusion, the majority does take the significant step of reinvigorating a strand of Fourth Amendment privacy related to property rights that had gone dormant, supplanted in more modern decisions by the “reasonable expectations” standard.  The four members of the Alito concurrence would have rejected that expansion of the Fourth Amendment, but the majority clearly established it.

Nonetheless, the doctrine recognized in Jones makes a difference to the outcome only in cases (like Jones) in which the individual has a property right (the majority’s theory) but no expectation of privacy (the concurrence’s theory).  But that will rarely be true.  People generally have an expectation of privacy in their personal property.  Generally speaking, cases involving the overlap of property and privacy are those in which the defendant gives up his expectation of privacy by giving up his property interest.  An example is throwing something away and then taking the trash to a public curb.  In that instance, the Jones majority would find no property-based privacy right, and the concurrence would find no reasonable expectation of privacy.  See California v. Greenwood (1988).  So I don’t see many instances in which the majority’s rule produces different results than prior Fourth Amendment doctrine.

The cases in which the Jones property theory does come into play will mostly depend on what property interests are sufficient.  A recurring issue will probably be shared property.  For example, in Georgia v. Randolph (2006), a husband and wife shared a home.  She wanted to let the police in; he refused.  The Court held that because he made his objection known at the time, a search violated his reasonable expectation of privacy.  But under Randolph, if he were not present, her consent would validate the search.

On the Jones property-rights theory, the outcome of a case in which he did not object conceivably could be different.  But I think it is very unlikely.  The defendant’s home unquestionably is property protected under the Fourth Amendment.  The key point, however, is that the consent of the wife makes the police officers’ intrusion not a “trespass.”  She has the right to allow people on the property.

Conceivably, the property theory could change the result in cases in which a party grants the police the right to search but does not have that right.  But the Court would likely hold that the Fourth Amendment applies only to a purposeful trespass.  And if it did not, it almost certainly would hold that the officers’ good faith precludes exclusion of any evidence they seize.  (I discuss this issue below.)

Jones could have real teeth if the majority were willing to make one other significant doctrinal move.  Jones involves a form of property that is protected by the Fourth Amendment that has been exposed to the public: the car was driven on public roads.  The decision could be extended to information that is similarly exposed, if the Court were willing to recognize a parallel property right in information.  But that too is extremely unlikely.  The Jones majority held, for example, that its decision did not apply to an open field.  Majority 10 (“Quite simply, an open field, unlike the curtilage of a home, is not one of those protected areas enumerated in the Fourth Amendment.”).  So it would be hard to understand how the decision could be extended to protect intangible information.

Just as important in assessing the longer-term significance of Jones for government monitoring, the limitation imposed by the majority’s requirement of a physical intrusion necessarily limits the decision’s importance.  The ruling does not place any limits on the government with respect to electronic monitoring that does not require attaching a device to an individual’s privacy.  As computational power increases dramatically in the next few years – so that the government can use cameras and cell phone data to locate people – the significance of Jones in this area of the law will fade pretty quickly.  The Alito concurrence makes this point, and the majority candidly agrees.  Alito 8 (“By contrast, if long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.”); Majority 11 (“Situations involving merely the transmission of electronic signals without trespass would remain subject to [reasonable expectation of privacy] analysis.”).

How about the Alito opinion?  That ruling is where the lasting significance of the decision lies, but even it has very significant limitations.  Justice Alito’s reasoning is decoupled from the installation of any device; it relates to the government’s monitoring of individuals’ movements through any means.  So it clearly applies to tracking cell-phone signals, for example.  It establishes the very significant point that the government does not have a completely free hand collect information on individuals’ movements for long periods of time.

On the other hand, the Alito opinion is just as (or more) significant for the Fourth Amendment argument that it rejects.  According to the concurrence, short-term monitoring does not violate a reasonable expectation of privacy.  And that opinion is not limited to the attachment of physical devices.  On that view, the government seemingly is perfectly free to, for example, use cell phone triangulation to track an individual’s movements for two or three days.  (Presumably, it would need the cooperation of the cell phone company.)

To be clear, there were only four votes for that proposition – the members of the Alito concurrence.  But it would be startling if all the members of the majority – who in the main are more conservative than the concurring Justices – disagreed.

One other point bears brief mention and later exploration.  The Alito opinion speaks in terms of expectations of privacy.  Similar issues arise with respect to tort suits for private invasions of privacy.  It will be interesting to see whether the concurrence’s view that individuals do not have an expectation of privacy from short-term monitoring of their location is later invoked to preclude suits against private parties for intrusions on privacy.

Beyond that, what are the details of the Alito theory and what does it mean?  Many initially read the Alito concurrence as a strong statement favoring individual privacy in a modern age.  I think that is very wrong.  The opinion openly struggles with these issues.  But it does not resolve them, much less resolve them in a sweeping endorsement of protecting privacy from the intrusions made possible by technology.  Of note, the concurrence freely acknowledges that technology may reduce expectations of privacy, which under established doctrine may give the government a correspondingly freer hand to gather information.  Alito 10 (reasonable expectations standard “involves a degree of circularity”); id. (“New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.  And even if the public does not welcome the dimunition of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.”); id. 11-12 (“Recent years have seen the emergency of many new devices that permit the monitoring of a person’s movements. . . . . The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.”).

The plea of the four members of the Alito concurrence is actually for the legislature to step in, rather than leaving these issues to the courts.  Id. 13 (“A legislative body is well situated to gauge public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”).

The only sweepingly pro-privacy opinion in Jones is instead Justice Sotomayor’s.  Sotomayor 3 (“Awareness that the Government may be watching chills associational and expressive freedoms.  And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”); id. 4 (“I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”).  But she is all alone – strikingly so, given that none of the other members of the Court’s left join her.

So I don’t see in Jones anything that remotely resembles a working majority on the Court for the conclusion that technological advances require the adoption of a new or broader conception of personal privacy.  And I think it signals to the government that in many respects its investigatory efforts are not subject to the Fourth Amendment.

As the Alito concurrence suggests, privacy protections in this context are instead likely to be provided by the legislature rather than the Constitution.  At least, that is the far more sound course for privacy advocates.

Following up on my posts on how Jones does not require a warrant

GPS-related issues left open by the Court’s decision

If the only legal question under the Fourth Amendment was whether a “search” had occurred, the decision in Jones would be a material victory for the defendant.  The majority’s holding that the installation constituted a search would make any question about the length of monitoring academic, because monitoring would be impossible without the installation.

Also, if the government uses GPS devices only for long-term monitoring of several weeks, the decision as a practical matter would be a near-categorical victory for the defendant.  The five concurring Justices hold that such conduct is a search, and they also very strongly suggest that it is the kind of search that requires a warrant.  Alito 13-14 (“[W]here uncertainty exists with respect to whether a certain period of GPS surveillance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant.”); Sotomayor 3 (agreeing with the Alito opinion regarding long-term monitoring).

But the only question under the Fourth Amendment is not whether a search occurred, and the use of GPS devices is not necessarily limited to long-term monitoring.  Those are the critical GPS-related issues that Jones leaves open for a later case.

The determination whether a governmental intrusion on privacy violates the Fourth Amendment and requires the suppression of evidence starts with the question whether there is a search.  But then there are three other questions:  (i) if there was a search, did it require a warrant issued upon probable cause; (ii) if no warrant was required, did it require probable cause or reasonable suspicion; and (iii) if the Fourth Amendment was violated, should the resulting evidence be suppressed under the exclusionary rule?

When cert. was granted in Jones, the Court seemed poised to answer not just the “search” question, but also issues (i) (was a warrant required) and (ii) (what standard of suspicion applies).  That is because the cert. petition broadly framed the question:  “Whether the warrantless use of a tracking device on respondent’s vehicle to monitor its movements on public streets violated the Fourth Amendment.”  Then the Justices themselves added another question:  “Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”

So both of the questions the Justices agreed to decide encompassed the issue of whether a warrant was required.  Then neither the briefing nor the oral argument made a big deal of flagging the fact that the Justices might just decide whether a search occurred and leave open for a later case whether, if there was a search, it did not require a warrant or probable cause.

But in fact the majority did leave those issues open, and as I’ve discussed in my earlier posts the initial reactions to the decision generally missed that fact.  Given how the questions presented, briefs, and oral argument framed the case, everyone expected Jones to resolve the constitutionality of warrantless GPS tracking.

In addition, the Court’s opinion affirmed the court of appeals’ judgment that this warrantless search was unconstitutional.  The case was not remanded.  So the immediate reaction was that all of the issues related to warrantless searches were resolved.

But they weren’t.  The majority declined to decide whether a warrant was required and what standard of suspicion applied.  Instead, as it said in the first sentence of the opinion, it resolved only “whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.”  Majority 1 (emphasis added).  As the concurrence explained, the majority held that the installation and monitoring “may violate the Fourth Amendment.”  Alito 8 (emphasis added).

But how and why did the majority decide only the threshold “search” question?  It explained that the government had not raised any other issues until the case got to the Supreme Court, which was too late.  Unfortunately, the majority wasn’t as clear as it might have been; if Part III had said “we leave for another day when the issue is properly presented whether such a search is constitutional despite the absence of a warrant and on less than probable cause,” then the press would have been more likely to understand the ruling correctly.  Instead, the Court said somewhat more opaquely that the government had “forfeited” its “alternative” argument “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 indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.’”  Majority 12.

So the Court did not decide whether installing and monitoring a GPS device for a short time requires a warrant, or instead can be done by the police on “reasonable suspicion.”  That will have to be resolved in a later case.

In that later case, there is a real reason to believe that the government will win.  Remember, four Justices believe that neither the installation nor short-term monitoring nor the combination of the two constitute a search.  Alito 3 (“The Court’s theory seems to be that the concept of a search, as originally understood, comprehended any technical trespass that led to the gathering of evidence, but we know that this is incorrect.”).  So only one member of the majority would have to conclude that a warrant isn’t required.

But what theory would the Court use to hold that no warrant is required?  The Constitution requires reasonable searches, not warrants.  “The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”  U.S. Const. amend IV.  Although the Supreme Court “has inferred that a warrant must generally be secured,” in Kentucky v. King it “recognized that this presumption may be overcome in some circumstances because the ultimate touchstone of the Fourth Amendment is reasonableness.  Accordingly, the warrant requirement is subject to certain reasonable exceptions.”  None of the exceptions recognized by the Court so far would cover the search in Jones.  Installation of a GPS device almost never involves an exigency that would make it impractical to contact a judge; the very fact that the officers have the tracking device available suggests that they contemplated the need for it in advance.

But warrantless searches are not limited to exigencies.  For example, officers may conduct a patdown of an individual they encounter.  Terry v. Ohio (1968).  They may conduct warrantless searches of probationers, United States v. Knights (2001), and persons subject to conditions of parole, Samson v. California (2006).  Individuals may consent to searches.  INS v. Delgado (1984).

Cases like Knights and Samson provide the doctrinal underpinnings for a later opinion holding that the installation and short-term monitoring of a GPS device does not require a warrant.  The rationale of those decisions is that a search is reasonable in light of the limited intrusion on the individual’s expectation of privacy and the significant governmental interest in the search.  The installation of a GPS device is only a technical trespass, and eight Justices recognized that the monitoring of the device does not intrude on a reasonable expectation of privacy, given that the individual is driving on open roads.  The highly technical nature of the search recognized by the majority is therefore critical.  On the other side of the ledger, the devices serve a significant governmental interest of aiding investigations without disclosing otherwise-private information.

I’m not saying that I agree with that argument.  My point instead is that it will write, easily.

No less important, the Jones majority in a footnote laid the foundation for concluding that no warrant was required.  On page 10, footnote 7, the majority addressed Cardwell v. Lewis (1974), in which the Court “rejected the claim that the inspection of an impounded vehicle’s tire tread and the collection of paint scrapings from its exterior violated the Fourth Amendment” (emphasis added).  In Jones, the Court recognized that its decision in Cardwell could have been based on two possible rationales:  either that “no search occurred” or that the warrantless search “was reasonable.”  The former – no search – was contrary to the rationale of Jones, because in Cardwell there was an equivalent trespassory intrusion on the defendant’s vehicle.  So if Cardwell were not to be overruled, it must rest on the latter theory that no warrant was required.  In the words of the Cardwell plurality, quoted in Jones, “Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable . . . .”

But does existing precedent preclude that result?  The government’s brief in Jones recognizes in a footnote (Br. 51 n.8) that United States v. Karo (1984), “required a warrant” when the government monitors a beeper “in private residences.”  (Practice pointer: always read the footnotes in briefs by the Solicitor General; that is where the good stuff is.)  But that aspect of Karo seemingly rested on “the general rule that a search of a house should be conducted pursuant to a warrant.”  Id.  Houses receive special Fourth Amendment protection, very different from the limited expectation of privacy while driving on open roads.

Another important question is whether only one member of the Jones majority would really have to endorse warrantless searches in this context.  Would all four members of the Alito concurrence adhere to the view that no search occurred, or would some instead adhere to the Jones holding that a search occurred as a matter of stare decisis and refuse to recognize an exception to the warrant requirement?  There is no way of knowing.  But the four concurring Justices did not signal any willingness to change their views.  And they clearly state that the intrusion is minor, supporting the conclusion that no warrant is required.  Alito 7 (The majority “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).”).  I accept the concurrence for that it says, and on that view there is no search that would require a warrant.

One other fair question is whether the possibility that short-term monitoring will not require a warrant is itself academic.  The U.S. Department of Justice and many state and local law enforcement agencies already get warrants for GPS monitoring as a matter of course.  So it may be that the entire case was largely irrelevant today because warrants are used anyway.

But it is equally true that the police overwhelmingly get warrants only when required by the Fourth Amendment, or when they are uncertain about whether they have to.  If the Court had squarely held that the government won Jones, it seems obvious to me that the government would have stopped seeking warrants.  The same will be true if the Court holds after Jones that no warrant is required.  That makes the scope of Jones a very important ongoing question.

But there is yet another way that Jones conceivably could turn into a nothingburger.  The government did not raise the final search-related issue:  whether an unconstitutional search triggers the exclusionary rule – i.e., requires suppression of evidence in the government’s case in chief.  That critical question will have to be resolved in a later case as well.

There is a raging fight in the Supreme Court about the vitality of the exclusionary rule.  Three members of the Jones majority (the Chief Justice and Justices Scalia and Thomas), as well as Justice Alito, have signaled their willingness to limit or overrule it.  Hudson v. Michigan (2006) (extensively discussing the issue in refusing to apply the rule to violations of the knock-and-announce requirement).  Justice Kennedy has said that he would refuse to extend the exclusionary rule to new contexts.  Id. at 603 (“[T]he continued operation of the exclusionary rule, as settled and defined by our precedents, is not in doubt.”).

How the Court would resolve the application of the exclusionary rule to the warrantless installation of a GPS device will depend on timing.  For the time being, given what I say above, I believe that the police would act in good faith in not securing a warrant for short-term GPS monitoring.  At the very least, the question remains open.  As I explain in this post from 2009 (The Surpassing Significance of Herring), that good faith may well preclude application of the exclusionary rule under Herring v. United States (2009)).  But see Orin Kerr’s post disagreeing (link currently broken).  If the Court were to squarely hold in a later case that a warrant is required, then the exclusionary rule would apply after that decision because the Court has always required suppression when the government consciously defies the Fourth Amendment’s requirements.

None of this should be a great surprise.  Going into the Jones decision, existing precedent was solidly on the government’s side.  The Court had concluded in Karo and United States v. Knotts (1983), that the monitoring of a beeper in a car on the public roads was not a search because the individual had no expectation of privacy in his public movements.  The current Supreme Court also generally is not inclined towards expanding the Fourth Amendment’s reach, though there are exceptions.  So it would have been remarkable if the defendant had won a sweeping victory in Jones.

A final thought on why Jones is written the way it is

As a concluding note, I want to address the logical question of why the Court would write such a narrow and arguably confusing decision, given that there was no rush (the Term is far from over) and that there was seemingly a majority for a more consequential decision holding that long-term monitoring (even by non-physical means) is a search requiring a warrant under the Fourth Amendment.  From the outside, and with the benefit of hindsight (which can be misleading), I think that the Jones opinions may be the result of extremely savvy tactical moves by four members of the Court in Jones.

First, presented with two different rationales for deciding the case – the narrow property-based theory of Justice Scalia and the other broader “reasonable expectation of privacy” theory of Justice Alito – the Chief Justice assigned the opinion to Justice Scalia, securing the narrower result as the Court’s holding.

Second, faced with the government’s argument that no warrant was required, a question on which his five-Justice majority very well may not have agreed, Justice Scalia kept his majority by not deciding that question.

Third, given the choice of which opinion to join, Justice Sotomayor picked Justice Scalia’s, creating a majority for recognizing a new form of privacy, while signaling that she completely agreed with Justice Alito’s finding of a search as well.  So she got the best of both worlds.  In addition, the Court’s decision left the impression that it had reached a very pro-privacy result (which Justice Sotomayor favors) even though that was not actually the consequence of the ruling.

Fourth, faced with the very difficult prospect of writing a full opinion articulating a rule for when monitoring is long enough to constitute a “search,” which he would have had to do if he persuaded Justice Sotomayor to join him, Justice Alito instead wrote principally a critique of the Scalia opinion.  (Turnabout is fair play, because that is a favorite pastime of Justice Scalia in dissent.)  Regarding the result he would reach, Justice Alito wrote without much analysis at all that monitoring for several weeks is too long.  And Justice Sotomayor signaled her agreement.  So Justice Alito was able to specify an outer marker for monitoring by the government without now having to articulate an administrable rule. Justice Alito also raised the prospect that a different Fourth Amendment standard might apply with respect to more serious offenses.  That question may be explored more in No. 10-945, Florence v. Board of Freeholders, which I argued in October.

Recommended Citation: Tom Goldstein, Why Jones is still less of a pro-privacy decision than most thought (Conclusion slightly revised Jan. 31), SCOTUSblog (Jan. 30, 2012, 10:53 AM),