GPS Tracking. Does it constitue a ‘search’?

In United States v. Jones, the Supreme Court held that the installation and use of a GPS device on a targets vehicle constituted a search. For those unfamiliar with the case, the basic facts are as follows. Antoine Jones, a Washington nightclub owner, was suspected of being part of a cocaine selling operation. To confirm these suspicions, police officers placed a GPS tracking device on a vehicle driven by the defendant after obtaining a search warrant. However, the installation of the GPS device did not take place within the 10 day period authorized by the search warrant – it happened on the 11th day.  Following installation of the GPS device, the defendant’s activities was monitored for 28 days.  During this time frame, the police discovered that the defendant went to a stash house where large amounts of money and cocaine were later found.

Following the filing of criminal charges, the defendant moved to suppress the evidence obtained from the GPS tracking device. At the hearing on the motion, the court stated that the officers’ actions were the equivalent of “warrantless activity” because they did not follow the terms of the warrant. However, the defendant’s motion was still denied because the court ultimately opined that the defendant did not have a reasonable expectation of privacy while traveling on public roads. And, without an expectation of privacy, there is no search for Fourth Amendment purposes. At trial, the government entered into evidence the data derived from the GPS tracking device and the defendant was subsequently convicted and sentenced to life in prison.

Following the defendant’s successful appeal to the DC Circuit, the government later petitioned for certiorari. The majority opinion, written by Justice Scalia held 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.'” Justice Scalia took exception with the officers “trespass” of the defendant’s vehicle, which occurred when officers undertook the “physical intrusion” of installing the device. The Supreme Court further opined that a trespass “conjoined with . . . an attempt to find something or to obtain information” constitutes a search for Fourth Amendment purposes.

As so eloquently put by Walter Dellinger, the defendant’s attorney, following this ruling: “law enforcement is now on notice that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.” Whether this is true or not, only time will tell. But, for the moment, this seems a big win for citizens Fourth Amendment rights.