By Lauren Britsch, J.D. Candidate
As a fellow blogger noted last month, the Supreme Court’s decision in United States v. Jones leaves much to be desired by way of direction to lower courts. So, how have lower courts since reacted?
A more thorough discussion of the Jones decision itself is available here. To briefly summarize, Jones 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’.” However, there were three opinions with different perspectives on the issue: 1) Justice Scalia’s majority opinion, which focused on the physical intrusion of the defendant’s property, his car, though in combination with the collection of information; 2) Justice Alito’s concurrence, joined by Justices Ginsburg, Breyer, and Kagan, which would have decided the question based on the defendant’s reasonable expectation of privacy; and 3) Justice Sotomayor’s concurrence (she also joined Justice Scalia’s opinion), which expressed some agreement with both of the other opinions.
Trial courts are already grappling with how to decipher and apply the reasoning of Jones. Not surprisingly, some courts have had to deal with different technologies under this framework.
The Eighth Circuit considered Jones’ applicability to an officer’s use of a key fob seized from a defendant, charged with conspiracy to distribute cocaine, to locate the defendant’s car. The court found that the key fob was lawfully seized during a pat-down of the defendant. The court applied Jones and held that the defendant’s Fourth Amendment rights had not been violated. There was no physical trespass because 1) the government was authorized to come into physical contact with the keys (via a lawful Terry stop) and 2) the transmission of electric signals alone is not a trespass. The court, separately from its Jones analysis, also noted that the defendant had no reasonable expectation of privacy in the key fob.
In a recent case in the Northern District of Ohio, a defendant had been convicted of fraudulently procuring federal disability benefits based largely on evidence obtained by recording the defendant’s property from a camera installed on a telephone pole by a “bumbling” government (the government apparently sent the defendant the bill for the covert installation). The camera recorded continuously for twenty-four days. The defendant argued that Jones applied because of the long duration of the surveillance. He particularly relied on Justice Alito’s concurrence, which indicated that long-term monitoring raised different concerns and would invade a reasonable expectation of privacy. However, the court rejected this argument because the Jones“majority limited its analysis to the trespassory nature of the GPS installation, refusing to establish some point at which uninterrupted surveillance might become constitutionally problematic.” In this case, there was no physical trespass as the camera was affixed to the telephone pole, property of the power company.
In the District of Massachusetts, a court considered Jones’ application to historical cell site information—data from the telephone provider’s records for specific telephone numbers. Justice Sotomayor and Justice Alito both expressed concerns in their opinions about the use of cell phone data. They worried that Justice Scalia’s “physical intrusion” test would not properly account for the privacy concerns in such data. And they were right. Prior toJones, the rule in the District of Massachusetts was that obtaining cell phone provider records was not a Fourth Amendment search. After noting that the Jones majority’s physical trespass analysis had no bearing on cell data, the court stated that the Jones concurring opinions’ focus on reasonable expectation of privacy threw this rule into question. However, the court chose to adhere to the district’s old rule, concluding that these particular privacy issues “are best left to Congress—at least until the Supreme Court definitely considers the matter.” Another court in Massachusetts similarly denied a motion to suppress historical cell site data. The court acknowledged that there might be five justices willing to find this type of surveillance over time implicates a reasonable expectation of privacy. However, the court said it would not extrapolate from the Jones decision but rather would wait until the court of appeals or the Supreme Court decided if an aggregation of surveillance records infringes a reasonable expectation of privacy.
In Florida, two defendants relied on Jones and moved to suppress data gathered from a GPS device affixed to a vehicle they used. The vehicle was not owned by either of the defendants, though they had permission from the owner to use the vehicle. The court denied the motion. It distinguished Jones because the defendant there was “the exclusive driver of the vehicle” and “had at least the property rights of a bailee.” In the case at bar, the defendants neither owned nor exclusively used the vehicle. Furthermore, neither defendant possessed the vehicle at the time the GPS was affixed to the vehicle. Therefore, under Justice Scalia’s trespass theory, there was no search. The court also considered that the defendants had no reasonable expectation of privacy in the vehicle. Another court held similarly when faced with a GPS placed on a car neither owned nor driven exclusively by the defendants.
Two other cases considered Jones in light of information obtained from a defendant’s shared files. In one case, a defendant argued that information obtained from a shared folder accessible through a peer-to-peer sharing program was illegally obtained. The court found there was no Fourth Amendment violation in part because “there [was] no evidence that the police installed any device or software on the defendant’s computer,” citingJones. In United States v. Ahrndt, the Ninth Circuit reversed and remanded the district court’s denial of a defendant’s motion to suppress evidence gained by accessing the defendant’s personal wireless network. It was error for the trial court to find that the defendant had affirmatively shared his files and therefore had no reasonable expectation of privacy. The court instructed the court below to determine whether the accessing of the files was a search under Jones.
Overall, lower courts seem to be playing it safe by generally applying both “tests” laid out in Jones: Justice Scalia’s “physical intrusion” analysis and the concurrence’s “reasonable expectation of privacy” test. This approach tracks Justice Sotomayor in her concurrence. Already the courts are facing questions of technologies that do not fit into a physical intrusion framework, namely historical cell site information and shared files over wireless networks, and the Supreme Court may have to answer again soon to technology and the Fourth Amendment.