The Supreme Court in a unanimous decision may have marked the beginning of backtracking on the Court's relatively recent jurisprudence related to Fourth Amendment search & seizure rights in criminal prosecutions. The case is US vs Jones and is cited as 565 US ___ (2012). You can read it here. It also may foreshadow an ideological realignment on the court. There are three opinions filed in Jones. There is a majority opinion authored by Antonin Scalia and joined in by the Chief Justice and Justices Thomas, Kennedy and somewhat surprisingly Justice Sotomayor. Sotomayor filed a concurring opinion in which she reminded its readers and perhaps the other justices that the rationale Justice Scalia set out was the narrowest possible ground on which to rule. Justice Samuel Alito wrote the third opinion in which he takes on the analysis by the majority.

Before I discuss those opinions at any length it is helpful to examine the facts.

Antoine Jones was the owner of a nightclub in the District of Columbia and law enforcement developed evidence that Jones was involved in the trafficking of controlled substances. The Drug Warriors went to the district court in DC and based upon evidence they already developed obtained a search warrant allowing them to attach a GPS device to the undercarriage of a vehicle registered to Jones' wife but driven by him exclusively. The magistrate when s/he issued the search warrant ordered that the prayed for device be attached to the underside of the vehicle within ten days of issuance and that it be done in the District of Columbia. Law enforcement acting like a combination of both Keystone Kops and a blundering constable did not honor the terms of the warrant and instead they installed it on the vehicle not in the District but rather in Maryland and not within the ten days prescribed but on the eleventh day. It is interesting to note that this case would not have seen the light of day in the Supreme Court had the law enforcement officers hewn to the requirements imposed by the issuing magistrate. They then monitored each movement of this vehicle for a period of twenty-eight days. Wherever the vehicle and its driver went so went the Constable at least digitally. The Government obtained data that showed them quite clearly where Jones (and his wife's car) were at all times and showed each and every stop made by anyone driving the Jeep. Some two thousand pages of data were captured by this device and sent off to the Government. This information was then used in conjunction with other web based assets to dig up great amounts of information about Jones and/or his wife.

Jones was eventually convicted of various drug offenses related to cocaine and he was sentenced to life in federal prison. He appealed and the Circuit Court overturned his conviction and the Government filed a petition for certiorari. This morning SCOTUS filed its opinion and affirmed the decision of the Circuit Court.

This decision is of interest to me because it is about something new and different how the Constitutional protections against unreasonable searches and seizures play out in the modern electronic and digital age and because we see in this opinion by Scalia and the concurring opinion of Justice Alito that we are about to return to a time when search and seizure depended on concepts of property law.

The analysis of Justice Scalia was that the installation of the GPS device was trespassory and the Government had to commit a trespass to the vehicle belonging to Jones and/or his wife in order install the device that would advise the Government of each and place Jones went for the entire twenty-eight days it was on the vehicle sending data back to the Government. As soon as he determined there was a trespass Scalia found a search and from that a constitutional violation. The precise holding of the Court was “We hold 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.” Scalia continued and wrote that the Government had occupied private property for the purpose of obtaining information. Scalia a champion of 'originalism' which is the belief that the Constitution's meaning today is the same as it was when the relevant portion was adopted. He says that there can be no doubt that ' such a physical intrusion would have been considered a search by the men who adopted the Constitution. He also is of the belief that there is no constitutional right to privacy. This ruling is reminiscent of the SCOTUS' 1928 ruling in Olmstead vs United States, 277 US 438 which held that listening devices attached to telephone wires on a public street didn't arise to the dignity of a 'search' within the meaning of the Fourth Amendment because there was no physical entry into the house or office of the defendant. This case was overruled by Katz vs United States, 389 US 347 less than forty years later when the court so famously noted that the Fourth Amendment protects people and not simply places. Katz disapproved of Olmstead and held that attaching an eavesdropping device to a pubic telephone booth was a search within the meaning of the Fourth Amendment even though it was not accompanied by a trespass. Obviously had Katz been decided by the current Court it may have been decided differently and Olmstead would still be good law because there could be no trespass to a public telephone booth and therefore it was not within the listing of protected areas contained in the Fourth Amendment. Scalia concludes in his analysis in Jones that the court's ruling based upon the logic of Olmstead and the meaning of constitutional proscriptions is not a return to that law but rather a separate analytical pathway in addition to Katz and its famous rule that the Fourth Amendment governs and mandates relief when there is a violation of a person's subjective but objectively “reasonable expectation of privacy.”

Justice Sotomayor opined in her concurrence that this analysis by Justice Scalia “supplies a narrower basis for decision” and because there is a search when the Government gets its evidence from an intrusion “into a constitutionally protected area.” At this point it is interesting that had Sotomayor not written her concurrence and instead had joined in the Alito opinion we would have had the same result but a completely different rationale. It would have been a rationale based upon privacy rather that archaic property law.

The third opinion, also entitled a concurrence is supported by the Court's usual 'liberal wing' composed of Justices Ginsburg, Breyer, and Kagan written by a most unlikely writer, Justice Samuel Alito. Justice Alito generally votes with the four justice-caucus generally referred to as the conservatives. Alito promptly went on the attack. Alito concurred in the judgment but really wanted a more extensive ruling than the 'majority' justices wanted. Justice Alito started off with obvious problem with constitutional jurisprudence when right up front in his opinion he said unabashedly that the case before them required them to apply the 18^th century amendment “to a 21^st century surveillance technique” a GPS device and he wrote “[i]ronically the Court has chosen to decide this case based on 18^th century tort law.” Also rather ironically Justice Scalia in a show of irritation commented negatively on this phrase by Alito-- it was not quite a bitch slap but it was amusing. Alito and his three co-signers, Breyer, Kagan and Ginzburg, clearly wanted to go further in this case than Scalia did. He states right up front that neither he nor the 'majority' found that there was a seizure of the vehicle because case law holds that a seizure occurs when there is a meaningful interference with the possessory rights to vehicle. Alito takes great pains to point out the fact that no matter what the majority wrote it is a return to trespass as a sine qua non for a search. Early in his opinion Justice Alito says he would “analyze the question presented in this case by asking whether [Jones'] expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.” Implicit in that sentence is Alito's suspicion that there is indeed a right to privacy under the Constitution. What I find fascinating in Alito's opinion is that he takes seriously the Ninth Amendment which proclaims that the enumeration of certain rights “shall not be construed to deny or disparage others retained by the people.”