By Neal Shechter, J.D. Candidate

On January 23rd, 2012, the Supreme Court issued its long-awaited opinion in United States v. Jones unanimously holding that prolonged, warrantless surveillance of individuals using physically-invasive GPS devices attached to their vehicles is an unreasonable search in violation of the Fourth Amendment.

Justice Scalia’s 5-4 majority opinion, joined by Justices Kennedy, Roberts, Thomas, and, surprisingly, Sotomayor, relied upon a dual textualist/originalist interpretation of the Fourth Amendment. Scalia first looked to the Constitution’s text to note that the Amendment protects not only an individual, but also his “effects.” Scalia noted that a Warren-era Supreme Court opinion in United States v. Chadwick had held that a motor vehicle is an “effect” within the meaning of the Fourth Amendment. Turning to an originalist interpretation of the Amendment’s purpose, Scalia then argued that it incorporates a common law principle that all physical intrusions, or trespass to property, have to be “legally justified.” The Fourth Amendment embraces this common law connection with fundamental property rights, Scalia argued, because otherwise, its enumeration of ‘houses, papers, and effects’ would be “superfluous.” Id. Scalia suggested that the originalist connection of the Amendment with common law property rights still has merit because early American courts would have protected an individual against a warrantless search by a “constable’s concealing himself in the target’s coach.”

The Government had argued that Jones did not have a “reasonable expectation of privacy” in the underside of his car, citing the previously-controlling test from Justice Harlan’s concurrence in Katz v. United States, 389 U. S. 347, 360 (1967). Scalia argued that it was unnecessary to answer that question, because the Katz test “did not narrow the Fourth Amendment’s scope” or “erode the principle ‘that, when the Government does engage in a physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.’” The Government also relied upon Knotts, a case in which a beeper was placed in a container so that law enforcement could monitor its location. Scalia distinguished Jonesfrom Knotts on the simple basis that the container in Knotts was not the property of the individual who was monitored by it, whereas the car monitored by the GPS device in Jones was owned by the defendant’s wife.

Justice Sotomayor, writing alone and making her best Anthony Kennedy impression by somehow creating a rule of law in a concurrence, articulated what is most likely going to be the state of law after Jones: an unreasonable search occurs where either (1) the government obtains information by “physically intruding on a Constitutionally-protected area,” or (2) “the government violates a subjective expectation of privacy that society recognizes as reasonable.”

The concurring opinion of Justice Alito, who surprisingly broke with Scalia to write separately, was joined by Justices Ginsburg, Breyer, and Kagan. In contrast to Scalia and Sotomayor, Alito forcefully argued that the Katztest is, and should remain, the only test for an unreasonable search within the meaning of the Fourth Amendment. Alito rejected the majority’s trespass-based analysis as an attempt to return to the Court’s pre-Katz jurisprudence, which had been criticized as being formulaic and unable to adapt to changing technology. Under the Court’s trespass theory, Alito argued, Jones would not have been protected if the GPS had been installed by the manufacturer and simply monitored by the Government. And in perhaps the most interesting section of the entire concurrence, Alito also criticized the majority’s rule for allowing prolonged, even limitless visual and aerial surveillance, while holding that short-term monitoring accomplished through a technical trespass was unconstitutional. In the final portion of his dissent-like concurrence, Alito argued that the Government’s conduct would have been unconstitutional under the Katz test, even if the manufacturer had placed the GPS device on the vehicle, as “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”

But Scalia’s majority opinion rejected Alito’s interpretation of Katz, noting that “even assuming that the concurrence is correct to say that ‘[t]raditional surveillance’ of Jones for a four-week period ‘would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,’ our cases suggest that such visual observation is constitutionally permissible. Scalia also emphasized that there must be both a physical intrusion or privacy invasion and a collection of information for an unreasonable search to occur, noting that “the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.”  (Interestingly, Scalia borrows this test from a line in a concurrence in Knotts by—and this is unusual—none other than former Justice Brennan, the liberal lion of the Rehnquist Court, with whom Justice Scalia has hardly ever agreed or cited to.)

Sotomayor’s concurrence is also a bit unusual in at least one respect: it appears to both agree and disagree with the majority opinion to which she ascribed. Sotomayor cited, quoted, and agreed with Justice Alito’s main punch-line—that long-term GPS monitoring is unconstitutional under the Katz test without evidence of any physical trespass. That begs the question as to why Sotomayor chose to join Scalia’s majority opinion instead of simply concurring in the judgment and writing separately as the 4-4-1 swing vote. Did Sotomayor read Justice Scalia’s opinion carefully enough? (“[O]ur cases suggest that such visual observation is constitutionally permissible.”) Or was Sotomayor perhaps unready to step out on her own in such an important case so early into her tenure on the Court? And in a parting blow of confusion, Sotomayor also wrote that it “may be necessary” for the Court to abandon its long-standing rule that an individual has no reasonable expectation of privacy under the Katz test in information voluntarily disclosed to third parties or to the general public. Sotomayor argued that such a rule was “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is . . . disentitled to Fourth Amendment protection.”

What is clear from Jones, therefore, is that Sotomayor will likely be the 5-4 swing vote in a hypothetical future Supreme Court opinion examining the use of prolonged, warrantless, but non-physically invasive electronic monitoring of individuals.  Here is my best guess:

1.      There is now at least a  five-member majority of the Court that supports the proposition that the Government cannot engage in long-term, non-invasive GPS surveillance of an individual without a warrant within any zone in which that person has a reasonable expectation of privacy. Such a ruling might even be unanimous, because none of the Justices, including Justice Thomas, signaled any intention to overrule Katz or replace theKatz test with the Court’s new physical invasion test.

2.      Five Justices (Ginsburg, Alito, Ginsburg, Breyer, Kagan) would possibly go further and hold in a hypothetical future case that individuals are presumed to have a reasonable expectation of privacy in the sum of their public movements. Under this logic, long-term, non-invasive electronic monitoring of an individual would be presumptively unreasonable under the Fourth Amendment simply because of the length of time in which the person is monitored and the sheer volume of information about the individual’s life which is collected.

3.      But four Justices (Scalia, Thomas, Roberts, Kennedy) have perhaps signaled their belief that the mere collection of information by means of non-invasive surveillance is not an unreasonable search within the meaning of the Fourth Amendment. Thus, according to that minority of the Court, individuals do not appear to have an expectation of privacy in the sum of their public movements.

4.      Finally, at least one Justice (Sotomayor) has signaled a readiness to depart from the Court’s long-standing “premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” It’s unclear whether other Justices on the Court share this view, but this will probably affect arguments in future information privacy cases before the Court.