October 24, 2013
On January 23, 2012, the Supreme Court ruled in U.S. v. Jones, holding that the attachment of a GPS (global positioning satellite) tracking device to a vehicle by law enforcement constituted a search under the Fourth Amendment.
I wrote about the ruling shortly after it was handed down, contemplating what the ruling could mean for future electronic surveillance cases. In one instance in that post, I implied that Jones stood for the proposition that law enforcement must obtain a warrant before attaching a GPS tracking device to an individual’s vehicle. Although such could be reasonably implied from Jones, the Court actually didn’t go that far in its ruling.
What Jones actually said was that such tracking by law enforcement was simply a “search” under the definitions of the Fourth Amendment – meaning that police must have either probable cause or “reasonable suspicion” (as the circumstances may dictate) in order to lawfully conduct the search.
The Jones Court left open the issue of whether the use of GPS devices without a warrant would be permissible under the Fourth Amendment where police have reasonable suspicion or probable cause to execute such searches; in addition, the Court did not resolve the question of whether the use of a GPS device in itself requires a warrant.
This Tuesday, the Third Circuit Court of Appeals resolved the latter of those issues, thereby resolving the former in the process.
The ruling, U.S. v. Katzin, held that law enforcement must always obtain a warrant when using a GPS device to track a private vehicle.
In its lengthy opinion, the court of appeals explained why a warrant was required in these circumstances.
First, it detailed why “reasonable suspicion” is insufficient. The court noted three categories in which a search may be conducted relying upon only “reasonable suspicion” – “special needs” cases, cases of “diminished expectation of privacy,” and Terry stops.
“Special needs” cases constitute a very narrow category that are wholly inapplicable here.
“Diminished expectation of privacy” cases are special circumstances in which an individual enjoys a lower amount of privacy; the “plain view doctrine,” which allows police to warrantlessly obtain evidence that is sitting in plain sight is an example of this. Individuals also have a diminished expectation of privacy while traveling in their vehicles, but the appeals court noted that several other circumstances must be present before this reduction in privacy is triggered.
Finally, the appeals court held that the use of the GPS device was not tantamount to a Terry stop – a brief police detention of an individual based on “reasonable suspicion” of his or her involvement in criminal activity – since a Terry stop is supposed to be brief patdown, and police GPS tracking is a lengthy and far more expansive search.
As far as whether warrantless GPS tracking is permissible when police have probable cause, the appeals court once again answered this question in the negative.
Specifically discussed was the “automobile exception,” which allows “warrantless searches of any part of a vehicle that may conceal evidence … where there is probable cause to believe that the vehicle contains evidence of a crime.” The appeals court found this exception inapplicable because it only authorizes police to search “any part of [the] vehicle that may conceal evidence” – and only for a very limited moment in time. The GPS tracking does not search any part of the vehicle, but traces the vehicle’s movements and locations throughout a potentially very long period of time.
The ruling is clearly a significant one on GPS tracking by law enforcement. However, there is another aspect of the ruling that, while also very important, may be less apparent: the Katzin court’s reliance on the “reasonable expectation of privacy” standard over the “trespassory” one.
If you are familiar with the Supreme Court’s Jones opinion, then you know why this distinction is important: although the Court was unanimous in holding that the attachment of a GPS device to a private vehicle constituted a Fourth Amendment “search,” they split on why it was a search.
Five justices, led by Justice Scalia, held that it was a search because the GPS was a physical trespass by state actors. The remaining four justices, led by Justice Alito, held that it was a search because it invaded an individual’s reasonable expectation of privacy. Justice Sotomayor, who joined in Justice Scalia’s opinion, also concurred separately to hold that both the trespassory theory and the privacy expectation theory are to be applied.
Most legal scholars regard the latter theory as being the more protective of individual privacy rights, so, although the Jones opinion was widely lauded by privacy advocates, it also caused some worry as to whether the Court was regressing on its Fourth Amendment privacy protection standards.
The Katzin ruling relied almost exclusively on the privacy expectation standard, and even, at one point, cited a 1975 Third Circuit ruling that noted that “the trespassory concepts [in early Fourth Amendment jurisprudence] … have since been discredited.”
This ruling will undoubtedly be referenced, if not relied upon, by other circuits in GPS tracking cases, and its treatment of the trespassory standard seemingly revived in Jones may make that resurgence merely a historical footnote, rather than a jurisprudential course change.