Among the cases on Monday which the Supreme Court has decided to add to next term's docket is
United States v Jones, which will present the following questions:
1. Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.
2. Whether the government violated the respondent’s Fourth Amendment rights by installing the tracking device without a valid warrant and without his consent.
Here's the facts: In 2004, a joint Safe Streets Task Force of the FBI and DC Police Department began investigating Antoine Jones, who owned and operated a nightclub in the District of Columbia, for drug-related crimes. Among other things, agents conducted visual surveillance and installed a fixed camera near respondent’s nightclub, obtained pen register data showing the phone numbers of people with whom he talked on his cell phone, got a wiretap for his cell phone, and obtained a warrant from a DC federal judge in the District of Columbia authorizing them to covertly install and monitor a GPS device on Jones's Jeep Grand Cherokee.
The warrant authorized the agents to install the device on the Jeep within ten days of its issuance and only within the District of Columbia; the agents did not install the
device until 11 days after the warrant was issued, and they installed it while the Jeep was parked in a public parking lot in Maryland. Later still, they replaced the GPS's battery while the Jeep was located in a different public parking lot in Maryland. It was kept in place for several weeks.
Using the GPS, agents could track the Jeep to a suspected stash house in Fort Washington, Maryland (also confirmed by visual surveillance), and based on the wiretap they learned of a sizeable shipment of cocaine during late October 2005. On October 24, 2005, agents executed search warrants at various locations, recovering nearly $70,000 from Jones' Jeep, and wholesale quantities of cocaine, thousands of dollars in cash, firearms, digital scales, and other drug-packaging paraphernalia from his suspected customers. From the stash house in Fort Washington, they recovered 97 kilograms of powder cocaine, almost one kilogram of crack cocaine, approximately $850,000 in cash, and various items used to process and package drugs.
Jones, unsurprisingly, found himself charged with a lot of crimes. His defense moved to suppress information obtained from the warrantless GPS search. Objection overruled, and Jones was convicted. However, his conviction was reversed by a unanimous decision of the DC Circuit panel penned by Judge Douglas ("Yes, I'm that Douglas Ginsburg") Ginsburg, finding that the introduction of evidence obtained via the warrantless use of a GPS device violated Jones's Fourth Amendment rights. Why? Because even though the GPS tracked what Jones was doing in public, he nevertheless had a reasonable expectation of privacy in the aggregate set of activities being surveilled:
[W]e hold the whole of a person‘s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.
Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one‘s not visiting any of these places over the course of a month. The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.
A person who knows all of another‘s travels can deduce whether he is a weekly church-goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.
And that kind of invasion of privacy, the Court held, was unreasonable:
Society recognizes Jones‘s expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation. As we have discussed, prolonged GPS monitoring reveals an intimate picture of the subject‘s life that he expects no one to have — short perhaps of his spouse.
What's at stake?
As the United States Government argued in its petition for certiorari:
Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States. The court of appeals’ decision seriously impedes the government’s use of GPS devices at the beginning stages of an investigation when officers are gathering evidence to establish probable cause and provides no guidance on the circumstances under which officers must obtain a warrant before placing a GPS device on a vehicle. Given the potential application of the court of appeals’ "aggregation" theory to other, non-GPS forms of surveillance, this Court’s intervention is also necessary to preserve the government’s ability to collect public information during criminal investigations without fear that the evidence will later be suppressed because the investigation revealed "too much" about a person’s private life.
... The court of appeals’ decision prevents law enforcement officers from using GPS devices in an effort to gather information to establish probable cause, which will seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism, and other crimes....
Protracted use of pen registers [tracking numbers called from a particular phone line], repeated trash pulls, aggregation of financial data, and prolonged visual surveillance can all produce an immense amount of information about a person’s private life. Each of these practices has been held not to be a Fourth Amendment search. But under the court of appeals’ theory, these non-search techniques could be transformed into a search when used over some undefined period of time or in combination. Just as "[a] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there," a person does not expect anyone to pull his trash every day for six weeks, or monitor the phone numbers he dials for months, or review every credit card statement he receives and every cheek he writes for years. The court of appeals "aggregation" theory thus has limitless potential to require courts to draw impossible lines between the moderate degree of review or observation permitted under the court’s approach, and the excessive or prolonged degree that becomes a search.
There is a circuit split, so this grant of
certiorari was not unexpected. The case should be argued at some point in the fall.