Supreme Court Agrees to Review Case on GPS and the Fourth Amendment

According to this morning’s order list, the Supreme Court has agreed to review United States v. Jones, the DC Circuit’s “mosaic theory” case on whether and when use of a GPS device installed on a car is a Fourth Amendment search. The Court added a question, as well:

“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.”

I’m glad the Court granted in this case, and I’m also also glad they added the question on installing the device. The installation question was the piece of the puzzle that was strangely left out of the Knotts case thirty years ago (see the * footnote), and as I blogged back when Judge Kavanaugh flagged the issue in his dissent from denial of rehearing (see comment [b]), I think its a difficult and important question. (Lower courts have uniformly held that installing the device is not a search or seizure, but I’ve never found their reasoning very persuasive.)

The fact that the Court added the question about installing the device adds a really interesting wrinkle to the Jones. case. Let’s simplify a tad and assume that the only issue is whether the installation and/or use of the GPS is a search or seizure — that is, let’s assume that if there is a search or seizure, then it’s unreasonable because there was no valid warrant. If that’s the case, then the government needs five votes agreeing with it on three different issues: (1) Installation of the GPS is not a search or seizure; (2) Initial use is not a search or seizure, and (3) Long-term use is not a search or seizure.

Only question (3) implicates the rationale of the DC Circuit’s opinion, what I have called the “mosaic theory,” and it’s always been quite unlikely that the Supreme Court would adopt that theory: It’s such a radical departure from anything that has come before in Fourth Amendment law that it’s pretty hard to imagine it getting five votes. What makes the added question in Jones intriguing is that argument (1) is probably the argument most likely (if any) to swing conservative Justices to the defense side. On argument (2), Knotts/Karo has already created an established line that has worked for 30 years; I don’t know if the conservative Justices will be inclined to mess with it. But the installing of the device may give a Justice Scalia or Thomas second thoughts; the act of installing the device is the act of interfering with someone’s private property, and it likely would be a taking under Fifth Amendment principles. Given the historical connection between the Fourth Amendment and trespass law, it’s conceivable that an originalist Justice might conclude that the interference with a person’s private property without a warrant triggered by installing the device violates the Fourth Amendment even if the subsequent use does not.

With the current Court, the better bet in any Fourth Amendment case is that the Government will win. But the added question makes this a particularly fascinating case to watch.