A lot of the early press reports on United States v. Jones reports that the Supreme Court held that the government needs a warrant to install a GPS device. But that’s not correct, actually. The Court merely held that the installation of the GPS was a Fourth Amendment “search.” The Court declined to reach when the installation of the device is reasonable or unreasonable. As the opinion explains on page 12 of the slip opinion:
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).
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.”
Commenter says:
Orin,
It is actually incorrect to say, as you do, that the Court held that “the installation of the GPS was a Fourth Amendment ‘search.’” The holding was even more limited than that. As the third sentence in Part II.A of the majority opinion states, the Court held that the installation and use of the GPS device constituted a search. See slip op. at 3. Justice Scalia amplified this point in footnote 5, stating that “[t]respass alone does not qualify,” but must be “conjoined with . . . an attempt to . . . obtain information.” Id. at 7. It follows, I think, that the mere installation of a GPS device, without more, would not necessarily constiute a search “in the constitutional sense.” Id. at 10 n.8.
January 23, 2012, 12:56 pmAnon says:
I admit I do not follow 4th Amendment doctrine as closely as I could, but can someone explain to me again how it could be reasonable *not* to obtain a warrant, at least in these circumstances??
I seem to remember a general movement from formal warrant requirements toward a more free-form reasonableness analysis in some circumstances, but I’m not clear how it works. I assume it is based on exceptions to the warrant requirement in some way? It can’t just be based on probable cause, can it? Otherwise, that would swallow the warrant requirement.
If you happen to carry these GPS trackers with you, and you see a wanted terrorist (lots of probable cause) without any notice that you would encounter, and you can slip one onto his car so you can track him to his lair, that might be “reasonable” outside of a warrant. (Although why not follow up with a post-hac warrant?) But in a case like this where you know where the guy is, there’s no exigency, etc., a can’t see any way this is reasonable absent a warrant (which is probably why they sought, and received one – they should have followed it).
January 23, 2012, 1:22 pmGharrett says:
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law tres- pass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001); Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816 (2004).
Orin get quoted by Scalia
January 23, 2012, 1:25 pmHowie S says:
The case also doesn’t state the remedy for this type of search. Does the exclusionary rule apply to information which would otherwise be publicly observable? Could this be an new exception to the exclusionary rule? Is it like Knock and Announce? What’s the harm to someone whose public information (their position on public roads) is taken via an unconstitutional search? I find it hard to imagine that the remedy should be the exclusionary rule?
January 23, 2012, 1:31 pmanon says:
I am pleased that according to the NY Times, the court seems to understand that GPS is not required for these intrusive searches, that automated license plate number recognition, cameras, and other technologies are just as intrusive.
I have been dumbfounded because my reading here constantly gives me the impression that Professor Kerr thinks all of this is constitutional.
I am hopeful it is just my reading skills that are lacking.
http://www.nytimes.com/2012/01/24/us/police-use-of-gps-is-ruled-unconstitutional.html
January 23, 2012, 1:31 pmBruce says:
I’ve read Jones, and agree with you on what the case does not hold. Afterall, the government did have a warrant to install the device. Any ideas as to why folks are missing the “installation of the GPS was a Fourth Amendment ‘search’” aspect of the decision?
Also, could you tell me why the GPS data wasn’t surpressed because the device was attached one day after the warrant allowed, and in another jurisdiction?
January 23, 2012, 1:35 pmthebruce says:
Total punt, but maybe better described as a dodge to avoid making bad law.
The installation may have been lawful based on the automobile exception, and we still don’t know if obtaining data through GPS monitoring requires a warrant. How unfulfilling.
January 23, 2012, 1:42 pmhippopotamusprime says:
Thank you, thank you, thank you! I feel vindicated. I read the decision this morning and thought to myself, “What a narrow ruling, certainly this will cause some confusion.” Then I looked at a few news articles and was flabbergasted to learn that warrantless GPS attachment to cars was an unreasonable search and violated the fourth amendment. I re-read the case, convinced myself that my earlier assessment was correct and have been waiting for the internet to fix itself ever since.
January 23, 2012, 1:47 pmDrew says:
@Anon: The Fourth Amendment contains no “warrant requirement.” It states that people have the right to be free from “unreasonable” searches and seizures, then it states what must be contained in warrants for them to be valid. Nowhere does it state that there must be a warrant for a search to be “reasonable.”
The Court understands a search with a warrant to be presumptively reasonable. It has also recognized other circumstances under which a search may be reasonable. It’s unclear what the standard will be in GPS cases; usually they lack the kind of urgency that typifies most “reasonable” searches without a warrant, but we’ll see.
January 23, 2012, 1:51 pmNAME REDACTED says:
Um, the court hasn’t punted at all. Now the standard body of 4th amendment law applies to this as if it was a search. That is all. That means in most cases this would require a warrant.
January 23, 2012, 1:56 pmDavid Schwartz says:
I think a trespass for the purpose of installing the GPS device, a device whose sole use is to obtain information, would be sufficient. But a trespass unrelated to any attempt to obtain information certainly wouldn’t be a search. Trespassing to plant a GPS monitoring device is an attempt to gain information.
January 23, 2012, 1:58 pmMichael F. says:
Still, wouldn’t a warrant be required except in cases where there is some practical impediment to obtaining one before placing the device (such as exigent circumstances or a traffic stop scenario, where the evidence will drive off before a warrant could be obtained)?
I don’t think the police typically place the devices during a traffic stop or any analogous scenario. While I can think of situations where exigent circumstances would exist, they would seem to me to be the exception rather than the rule. Rather, my impression is that they decide to track the movements of a subject of an investigation, and then they find the person’s car and place the device. In that situation, I see no reason why the police could not obtain a warrant before tracking down the vehicle to place the device. Am I missing something?
January 23, 2012, 2:02 pmmikee says:
Is use of aerial drones for tracking a vehicle similar to this GPS issue, or different from it?
January 23, 2012, 2:14 pmthebruce says:
NAME REDACTED: That means in most cases this would require a warrant.
I don’t know what area of law you are in, but no, in most cases this would not, if the standard for a warrantless search of this sort is reasonable suspicion. But then we don’t know what the standard for warrantless searches of the “slap something on the undercarriage of a vehicle” sort is.
January 23, 2012, 2:16 pmHasdrubal says:
So they didn’t define a rule for reviewing the reasonableness of these searches, or point to an already existing rule?
January 23, 2012, 2:19 pmAdam says:
Apparently I should have failed crim pro, because I’m with you. I would have thought that if it’s a search, a warrant is required unless some sort of exception applies to the specific case.
But maybe I’m missing something and GPS tracking can be inherently reasonable and thus not require a warrant? That sure doesn’t sound right.
January 23, 2012, 2:23 pmLior says:
Given the tendency of so called “science writers” to take a recent scientific article (if not a preprint) and mangle it for the news media, I’m somehow not surprised at “legal reporters” being unable to read Supreme Court opinions written in English.
January 23, 2012, 2:31 pmAdam S says:
Exactly, and thus the position that subjective intent is involved in the equation of whether X constitutes a search is vindicated.
January 23, 2012, 2:39 pmKazinski says:
I’m not sure that after today’s decision any court will find a warrantless installation of a GPS device “reasonable”. Under current case law searches of vehicles without a warrant are limited to items in plain view, and when conducting a search incident to arrest when the person is in close proximity to the vehicle:
Maybe they can install a GPS device incident to arrest, or when there is contraband in plain view, but that doesn’t seem like it is of much practical use.
January 23, 2012, 3:06 pmKazinski says:
Quite different. Same with license plate cameras. If they don’t have to physically touch your car to track it, then they don’t need a warrant.
There really isn’t much difference between using a drone or a manned helicopter to track a car, or a license plate camera and cop reading your license plate and entering it a computer. What distinguished Kyllo, was that the infrared camera’s revealed details that would not be apparent by the naked eye. But that wouldn’t be the case with drone or license plate camera surveillance.
January 23, 2012, 3:26 pmAfternoon round-up | says:
[...] the Volokh Conspiracy, Orin Kerr has several posts on the opinion here, here, and [...]
January 23, 2012, 4:29 pmM. Gross says:
The government did indeed get a warrant… they just screwed up executing it.
Based in part on information gathered from thesesources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic trackingdevice on the Jeep Grand Cherokee registered to Jones’s wife. A warrant issued, authorizing installation of the device in the District of Columbia and within 10 days. On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot.
Realizing they didn’t actually have a valid warrant in the jurisdiction they performed the search in, they then tried to argue it wasn’t a search when it came up on appeal.
In conclusion, remember, people: reading warrants is important.
January 23, 2012, 4:36 pmSupreme Court Says Warrant Required for GPS Tracking (See correction below) | The Agitator says:
[...] Orin Kerr points out that the court did not rule that the government needs a warrant before attaching a GPS device, [...]
January 23, 2012, 4:42 pmRonF says:
Question:
I change my own oil. While crawling under my car I find this GPS device. Can I take it off? Can I attach it to someone else’s car? Can I throw it in the river? Can I smash it with a hammer? Does whether or not I know what it is make a difference?
January 23, 2012, 5:10 pmHappy dance! « Whipped Cream Difficulties says:
[...] to add 2: Discussion at the Volokh Conspiracy. Part 1. Part 2. Part 3. Part 4. Still wading through this, but part 2 makes a good point; the Court did not [...]
January 23, 2012, 5:12 pmSupreme Court Court Rejects Willy-nilly GPS Tracking says:
[...] “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,’” Justice Antonin Scalia wrote for the five-justice majority. The majority declined to say whether that search was unreasonable and required a warrant. [...]
January 23, 2012, 5:17 pmUS Supreme Court: Police Require Warrant to Track Vehicle via GPS Device | Drug Blawg says:
[...] Fourth Amendment scholar Orin Kerr, a former Justice Department prosecutor, said the majority did not say outright that a warrant was required in every case. [...]
January 23, 2012, 5:32 pmUS Supreme Court Court Rules On GPS Tracking [sort of] « MadMark's Blog says:
[...] movements, constitutes a ‘search,” Justice Antonin Scalia wrote. They declined to clarify whether that search was unreasonable and required a warrant. Advertisement LD_AddCustomAttr("AdOpt", "1"); LD_AddCustomAttr("Origin", "other"); [...]
January 23, 2012, 6:10 pmScott says:
Wrap it in a box and send it to the North Pole. Santa doesn’t take returns?
January 23, 2012, 6:25 pmRyan says:
I just heard the CBS Evening News fail to make this distinction. Embarrassing.
January 23, 2012, 6:46 pmSolipsist says:
So we actually don’t yet know if a warrant is required to install a GPS device.If so why they did ask for one in the first instance?
January 23, 2012, 8:05 pmthe stoppel doctrine does anot apply? Once yo accepted that you need a warrant,you cant argu that you don need one.
Fourth Amendment Lives? Supreme Court Says GPS Monitoring Is A Search That May Require Warrant [Updated] « waweru.net says:
[...] out, it's not even that clear. Instead, it looks like they really punted. The court really stops just short of saying that a warrant is needed — it just says that placing the device is a search. It's possible to interpret that to mean that [...]
January 23, 2012, 9:10 pmC says:
Not at the present time. Unmanned aerial vehicles are currently limited to Other than Conus operations. The FAA is not yet happy with their ability to fly in U.S. airspace except in ferry flights (with a manned chase plane) and in military operations areas.
January 23, 2012, 9:21 pmC says:
I will also add that a Sensor Operator is involved, effectively the equivalent of a cop-walking-the-beat, sort of.
They are not “drones”. Although the UAV is “unmanned”, the Unmanned Aerial System (UAS) is not. There is a Ground Station receiving the feed, so it is sort of the cop-on-the-beat.
Should the UAS be treated like a police helicopter? The UAS just flies at a lot higher altitude.
Or
The UAS has similarities to the cop-walking-the-beat to treat the observed video with an eye towards “reasonable suspicion”. Yet, is the UAS “in public”? I would say “no” since it flies so much higher than the Police Helicopter. For a Law Officer is a helicopter to follow your vehicle, they are probably low enough and slow enough to be potentially noticed, and therefore the Helicopter is “in public” in that there is some reasonable to be able to become aware that you are being observe and thus may choose to modify what information the Observer can obtain. But the UAV is not reasaonbly observable to both partiees, both the Observer and the Observed, and to be “in public” is 2-way observation by both of each other. Therefore, to use a UAS would require one of two things (possibly others):
a) Someone on the ground has cause for at least Reasonable Suspicion and possibly the higher threshold of Probable Cause. Based on that, the ground-truth Law Officer can cue the UAS’ sensor operator. This allows temporary, unwarranted data collection until the Reasonable Suspicion is disproven (and the monitoring is dropped and the data cannnot be stored/saved linkable to the Observed citizen). If the Reasonable Suspicion rises to Probable criminal activity observed, then either an arrest would ensure or an Investigation would be opened to allow warranted collection of additional observation.
b) Post a sign announcing aerial observation. Some highways have this already: speed limit enforced by radar. The U.K. has this for its subway visual cameras. The public would accept this sacrifice of Liberty for Security for some high-profile events; e.g. large crowds at a the Olympics. Similarly, football stadiums could post signs at the entrance than admittance is conditioned on willingness to be video-monitored by a UAS (now in the blimp, rather than a winged plane). This is similar to Disneyland being able to take your picture while in the private park, which is automatic consent that it may be used for ‘publicity or other lawful purposes.’
January 23, 2012, 9:34 pmC says:
The Law Enforcement will assert that they can do this, but I expect these will be the types of caess to come.
My personal opinion is that if an Observation is made in public but then ALSO STORED in a computer, that is an unreasonable search/seizure. A cop reading your license plate is current standard, simply checking an in-plain-view observation against their memory of recent stolen vehicles. If the vehicle or operators show suspicion, then you can enter the license number into a computer for a check against those reported stolen, but the Information Transaction *cannot* be stored if the stolen-vehicle check is negative.
January 23, 2012, 9:46 pmThe key is that any STORED data is no longer “in public”. It is now on LEO-controlled data storage devices. Any access to that stored data will need policies that limit it to view only with cause.
Just because my fingerprints and image and Driver’s License are on file, the fingerprints for a government-access-card with its image and the Driver’s License image on file, LEOs cannot on a whim or curiosity go looking at the information about me. They must have a reason to be allowed access to my data. IRS workers can be disciplined for looking at the tax records of Celebrities or Politicians, and access logs are able to reveal these inappropriate intrustions. Military DNA database is STRICTLY limited to being used ONLY to identify your body for handling/delivery to relatives. No paternity test claim, medical insurance inquiry …. nothing except the intended mandatory-collection purpose allows access to that data.
C says:
Can I take it off? => Yes, but first some may want to consider their particular situation. Could it be a bomb? Those with a security clearance should NOT touch it, but rather inform appropriate leadership.
Can I attach it to someone else’s car? Can I throw it in the river? Can I smash it with a hammer?
=> Under the common-sense test that its original owner has discarded it, yes, do whatever you want. Like the advertising flyer under your car windshield, it is yours. Lawyer types are requested to chime in on whether it is “trash” or a “gift”.
(The Legislature, in the interests of protecting taxpayer equipment investments, should probably pass a law about this. Something like this: If it is PROPERLY LABELED to the Owning Agency, then the LEO agency can request its return within 30-days of written notice. Said notice must include a paragraph or such on Public Records Law and how the recipient can make a request for the data collected by the device. But, as a legitimate Law Enforcement method, if the Owning Agency provides a written notice, including the Case Number under which the related warrant is on file, then the LEO Agency can require either return of the device or payment of a nominal fee that replaces the equipment. This is a reasonable return of public property for the general welfare of the taxpayers. If the LEO Agency prefers to hide the fact that an Investigation exists then the Agency will simply accept the loss from their budget and not send the written notice. Note that, although the Subject of the Investigation may be a relative of the vehicle owner, any Written Notice for Return would have to be sent to the Vehicle’s address-of-record per its License Plate and Registration. The vehicle owner may not have been the one who recovered/found the GPS device. So the vehicle owner must be applied to be waiver from the Equipment Return requirement. Something akin to Debt Collectors contacting you to collect on a bill yet not be able to harass you would come into play for this part of the Legislative language.)
Does whether or not I know what it is make a difference? => Too many options here. Need a Legislative debate on this. First instinct is “no”. This goes to the LABELING REQUIREMENT. Federal employment IDs say “IF found, please drop this is the nearsest U.S. Post Office bos.” Maybe something like that on the label?
January 23, 2012, 10:05 pmSupreme Court Court Rejects Willy-Nilly GPS Tracking | Tainted Stream says:
[...] “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,’” Justice Antonin Scalia wrote for the five-justice majority. The majority declined to say whether that search was unreasonable and required a warrant. [...]
January 23, 2012, 11:06 pmC says:
Bug report on the comments software.
With 4 posts on the Jones case, it’s hard to remember for certain which thread got what comment that I may have left.
Yet, pretty certain this thread is where I had a lengthy comment on Unmanned aerial vehicles/systems.
I clicked “submit”; it appeared on the page. Closed “x” the tab.
From the home page, was reopening each thread with right-click / open-in-new-tab. Now the comment is not here.
January 23, 2012, 11:13 pmSupreme Court Court Rejects Willy-Nilly GPS Tracking « Vehicle Gps says:
[...] “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,’” Justice Antonin Scalia wrote for the five-justice majority. The majority declined to say whether that search was unreasonable and required a warrant. [...]
January 24, 2012, 1:49 amWhy Supreme Court’s GPS ruling will improve your privacy rights | cellphonetrackerapp.com says:
[...] George Washington University law highbrow Orin Kerr argues that United States v. Jones, motionless today, was a comparatively slight ruling. No [...]
January 24, 2012, 2:09 amFED: Supreme Court Holds that GPS Tracking Constitutes a Fourth Amendment “Search.” says:
[...] the lower courts, and the D.C. Circuit did not address it. Orin Kerr made this point yesterday in a post on The Volokh Conspiracy blog. Additionally, Adam Liptak of the New York Times reported that because the case focused on the [...]
January 24, 2012, 9:02 amArticles for Tuesday » Scott Lazarowitz's Blog says:
[...] Orrin Kerr: What Supreme Court’s GPS Search Decision Does Not Hold [...]
January 24, 2012, 10:13 amSupreme Court GPS Tracking Case: Round-up and Resources « GEODATA POLICY says:
[...] New Doctrine of What Is a Fourth Amendment Search, What Jones Does Not Hold, What’s the Status of The Mosaic Theory After Jones, Why Did Justice Sotomayer Join [...]
January 24, 2012, 10:16 amC&P says:
It’s enormously frustrating that the court does not provide clear holdings in cases such as this. I understand that the issues are complicated and each of the Justices has his or her own view of how things ought to be. But what the law needs is clarity and one would hope that the Justices would endeavor to bring that quality with their decisions. After all, they’re smart people.
Instead, we often get the “we leave it to another day” trope, which is a cop-out, IMHO. If life-long tenure can’t provide courage, what can?
January 24, 2012, 11:47 amU.S.S.Ct: GPS Tracking is a Search « Library of Defense says:
[...] the Volokh Conspiracy, Orin Kerr has several posts on the opinion here, here, and here. Share this: from → General ← The Consequences of a Reinke Win: 2 COA [...]
January 24, 2012, 12:43 pmCorrection on GPS Devices and Warrants « Threads from Henry's Web says:
[...] corrected an error in my original post on this topic via a comment. I’m linking here to a clarification at The Volokh conspiracy, which I think makes the difference [...]
January 24, 2012, 1:25 pmThe Liberty Papers »Blog Archive » SCOTUS: Police Placing GPS Tracking Device on a Vehicle Without Warrant Violates the Fourth Amendment [or Does it?] says:
[...] Doug also pointed me to this article by Orin Kerr at The Volokh Conspiracy post entitled “What Jones Does Not Hold” [...]
January 24, 2012, 3:06 pmProf. Orin Kerr Cited by Supreme Court in Fourth Amendment Case « 20th & H: GW Law Dean's Blog says:
[...] Orin clarified a misconception about the case on the blog, the Volokh Conspiracy “A lot of the early press reports on United States v. [...]
January 24, 2012, 3:58 pmC says:
Misssing something? Just one thing…they do not necessarily place the device on the Subject’s car. They may place the device on a car not owned by the Inveestigation’s Subject but rather another.
I don’t know to what degree it matters whether the vehicle can be shown to be habitually used by the Investigation’s Subject vs the actual vehicle owner.
January 24, 2012, 6:43 pmJones confounds the press | says:
[...] 12:50 pm on Monday, Orin Kerr – whose views in this area are as respected as anyone’s – had this post at the Volokh Conspiracy in which he explained that “early press reports” were “not [...]
January 25, 2012, 12:40 pmSupreme Court Court Rejects Willy-Nilly GPS Tracking | Techno Magazine | Daily Technology News Magazine says:
[...] “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,’” Justice Antonin Scalia wrote for the five-justice majority. The majority declined to say whether that search was unreasonable and required a warrant. [...]
January 25, 2012, 1:23 pmThe Second-Day Story on U.S. v. Jones | Cato @ Liberty says:
[...] on the Volokh Conspiracy blog, George Washington University law professor Orin Kerr noted “What Jones Does Not Hold.” The Court declined to reach when the installation of the device is reasonable or [...]
January 26, 2012, 4:54 amThe Second-Day Story on U.S. v. Jones | My Blog says:
[...] on a Volokh Conspiracy blog, George Washington University law highbrow Orin Kerr remarkable “What Jones Does Not Hold.” The Court declined to strech when a designation of a device is reasonable or unreasonable. … [...]
January 30, 2012, 1:36 amExclusionary Rule Unwarranted for GPS Searches | TomTom GPS Review says:
[...] under the Fourth Amendment. Numerous writers have pointed out that this description is simply not true. The majority merely held that the police’s use of GPS was a search; it expressly declined to [...]
February 1, 2012, 4:36 am