Stopping tracking in its tracks
“Awareness that the government is watching chills associational and expressive freedoms.”
— Justice Sonia Sotomayor
“Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes.”
— Justice Samuel Alito
When is a unanimous decision of the Supreme Court not really a unanimous decision at all? When do two Justices who usually agree take to calling each other’s arguments a ‘distortion’, ‘highly artificial’, and having ‘little if any support.’ When is a minority opinion really the majority opinion? The answer to each of those questions can found in a decision released by the United States Supreme Court on Monday.
In one of the more anticipated decisions of the term, the Supreme Court had to determine whether law enforcement agents can perform electronic surveillance on a suspect by placing a GPS device on the suspect’s vehicle and tracking his movements. The government argued that because the GPS device was attached in a public place there was no intrusion and therefore no search warrant was necessary.
What is immediately clear from the Supreme Court’s ruling is that a warrant is necessary in order to conduct the kind of surveillance utilized in this case. In fact, all nine Justices agreed on that fact and the decision will go down historically as unanimous. What is equally as clear is that there was a very clear split on just why a warrant was necessary. The distinction is somewhat convoluted but because it has major implications, it is worth a closer look.
The majority decision was written by Justice Antonin Scalia and joined by Justices Kennedy, Thomas, Sotomayor and Chief Justice Roberts. While Scalia is often thought of as being one of the more conservative Justices on the Court, in reality his opinions are consistently driven less by a political ideology and more by his legal ideology of originalism. True to that reading of the Constitution, Scalia examined the GPS implantation to determine whether it would have violated the Fourth Amendment at the time the Fourth Amendment was adopted.
On first blush that would appear to be difficult as the Bill of Rights was adopted in 1791 and there were neither GPS devices nor automobiles at the time. Scalia points to the fact that, at the time of the adoption of the Fourth Amendment, it was considered a violation of a person’s rights and a search if the government entered onto their property to conduct an investigation. In other words, the trespass triggered the constitutional violation.
Justice Alito, joined by Justices Breyer, Ginsberg and Kagan, agreed that there was a violation. But Justice Alito thought it ‘highly artificial’ to go to 18th Century standards to reach a decision on a highly modern question. He pointed out that the theory of trespass triggering a search and seizure violation had been long ago abandoned by the Supreme Court because technological advances raised serious Fourth Amendment questions in situations where there was no trespass.
Alito relied on the standard that has been applied for decades in search and seizure cases — whether the person who was searched had an ‘expectation of privacy’ in the thing or place that was searched. In this case he concluded that the public does have a reasonable expectation that a GPS device won’t be affixed to their car in order to follow their movements.
Both the majority opinion and Alito’s concurrence cited serious shortcomings with the other side’s logic. Scalia points out that the ‘expectation of privacy’ test doesn’t make it clear where the expectation lies. What if the police just followed the defendant for four weeks? What if the GPS unit was only there for two days? Alito says that these are questions to be answered in subsequent cases. But Alito’s concurrence points out that the majority opinion wouldn’t apply to things like GPS monitoring through a smart phone since that would not require any trespass.
Into the breach steps Justice Sotomayor who not only signs on to Scalia’s majority opinion but also writes a separate concurrence to say that she agrees with Alito too, but that the questions he raises are weightier questions for another day. Her concurrence makes clear that this is just the first sortie into an area of privacy that is constantly changing as technology advances around us. Future cases will further explore this area. As Justice Sotomayor states, “But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.” Only time will tell if the Court will ever make that fundamental change.
David Hejmanowski is a magistrate and court administrator at the Delaware County Juvenile Court and a former assistant prosecuting attorney.