United States v. Jones and 4th Amendment Surveillance Limits

Introduction

Homeland Security is tasked with the responsibility of safeguarding the United States from threats, both foreign and domestic. In an age of technological revolution unseen and unrivaled in any previous era of human history, digital surveillance is both more commonly accepted and viewed with suspicion by people who use cell phones, the Internet, social media, or even vehicles with built-in GPS tracking systems. Many people allow Google, a public company, to monitor their movements and track where they have been, while others disable location tracking and use private networks to maintain their privacy in the age of digital intrusion and mass surveillance.

The question that the Supreme Court raised but did not answer directly in United States v. Jones, 565 U.S. (2012) was what constitutes a reasonable expectation of privacy in the digital world. Did using a GPS tracking device without a warrant constitute a violation of the Fourth Amendment? The Supreme Court ruled in a 5–4 decision that it did, and this served as a landmark ruling in terms of how far law enforcement can go to track suspects. FBI Director Robert Mueller went so far as to testify before Congress that the Jones ruling had placed a significant limit on the FBI's ability to conduct surveillance (Johnson, 2012).

Yet in the case of Jones, the government tried him again—this time using GPS data from the car's built-in system. The case resulted in a mistrial, and Jones, aware that another trial would commence, agreed to a plea deal. Thus, what initially appeared to be a victory for Fourth Amendment rights advocates soon revealed itself as little more than a technical victory, one that could easily be circumvented because of the built-in digital communication systems that law enforcement can access for surveillance purposes. For Homeland Security, the Jones ruling may seem like a limitation, but the reality is that DHS has multiple tools available that can assist in tracking suspects. This paper describes the background of Fourth Amendment case law and United States v. Jones, explains the Supreme Court's ruling, and discusses it within the wider context of the responsibilities and capabilities of Homeland Security to engage in surveillance within the confines of the Jones ruling.

United States v. Jones and Fourth Amendment Case Law

The Fourth Amendment has always been a thorny issue for law enforcement. The ruling in Harris v. United States (1947) allowed law enforcement to conduct searches regardless of the reason for a person's arrest; however, that allowance was later limited by Chimel v. California (1969), which confined law enforcement's right to search to the immediate area for weapons that the detained person might use against officers. Searching the premises for evidence to support a case of wrongdoing would still require a warrant. Thus, even if a murder was committed in a home, police would still need a warrant to search it.

Before those cases, however, came the Exclusionary Rule, which was implemented to stop unlawful searches and seizures. It arose from the so-called "fruit of the poisonous tree" doctrine established in Weeks v. United States (1914) and the 1920 case of Silverthorne Lumber Co. v. United States. Exceptions to this rule emerged as law enforcement put forward situations where it was in the public's best interest to conduct searches without a warrant. The ruling in Arizona v. Gant (2009) gave validation to the concept of search incident to arrest as articulated by Chimel v. California decades earlier. Yet the US Supreme Court ruled definitively in favor of the Fourth Amendment right to privacy in Mincey v. Arizona (1978), in which the presumption that police have implied authority to conduct a search in the event of a murder was tested and rejected by the Court. Indeed, it has been shown that police may be civilly liable if they conduct a warrantless search (Schad, 1967).

The Fourth Amendment is explicit about the right to privacy: it is "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized" (U.S. Const. amend. IV). Other cases have confirmed this right, including Wilson v. Arkansas (1995), Miller v. United States (1958), and Sabbath v. United States (1968). Yet the September 11 attacks changed much in terms of how the public thinks about the trade-off between privacy and security. The ruling in Hudson v. Michigan (2008) showed that notice does not always have to be given by police before conducting a search. The Electronic Communications Privacy Act of 1986, updated after 9/11, further expanded the room available to federal agencies to conduct searches of digital equipment—a development that has weighed on the minds of courts as they attempt to determine the proper approach to warrantless searches.

In the case of United States v. Jones, the central issue focused on the use of a tracking device. The prosecution argued that the ruling in United States v. Knotts had permitted the use of a beeper tracking device, but Chief Justice Roberts stated that the cases were incomparable because in Knotts, police still had to follow the car and do the physical work, whereas in Jones all police had to do was push a button and sit back. This distinction was somewhat arbitrarily drawn—the Constitution does not state that tracking is permissible when one must physically follow a subject but impermissible when technology makes physical pursuit unnecessary. Yet that was the argument Roberts made, and the ruling in Jones essentially overturned the ruling in United States v. Knotts.

Even when Justice Scalia argued that the GPS tracking used against Jones constituted a trespass, the prosecution countered that even if it were technically a trespass, it was permitted by United States v. Karo, which established that it "made no difference because the purpose of the Fourth Amendment is to protect privacy interests and meaningful interference, not to cover all technical trespasses" (United States v. Jones, 2012). The majority ruling, however, did not agree with that interpretation of Karo and instead held that the warrantless use of a GPS tracker was a violation of the Fourth Amendment (Liptak, 2012). As the defense noted at the time, the ruling was significant because it put law enforcement "on notice that almost any use of GPS electronic surveillance of a citizen's movement will be legally questionable unless a warrant is obtained in advance" (Liptak, 2012). In other words, if police wanted to use a beeper system to follow a car—or collect GPS data from the vehicle's built-in GPS service—that would be permissible; but attaching a GPS tracker without permission or a court warrant would breach the Fourth Amendment. That is a line which, in the age of digital surveillance and rapid technological advancement, law enforcement must not cross.

The Supreme Court's Ruling

The ruling affected the applicability of the Fourth Amendment in a very narrow and specific way—with respect to the warrantless use of GPS trackers. That is all. It limited Karo and Knotts insofar as both cases had given more leeway to law enforcement with respect to technical violations of the Fourth Amendment. The ruling in Jones signaled that the Supreme Court wanted to draw a distinction between aggressive law enforcement use of technological innovations and the public's right to feel secure in its possessions. Intrusive behavior on the part of law enforcement was not protected; rather, the Court ruled in favor of individual privacy.

This ruling is especially pertinent in the context of the post-NSA scandal triggered by the Snowden revelations, which revealed that the government agency was spying on American citizens through their digital technology. It was an echo of Operation CHAOS, when America's intelligence community was caught spying on US citizens (Theoharis, 2006). The ruling by the Court can be seen as a kind of anticipation of the Snowden leaks, and it came at a time when the public was growing upset over the reauthorization of the Patriot Act beginning in 2005 and again in 2009 (Epic, 2012). By placing this curb on police authority to monitor and track people, the Supreme Court was signaling to both the public and law enforcement that there were limits to how far the state could encroach on people's right to privacy.