Katz-Ing Up and (Not) Losing Place: Tracking the Fourth Amendment Implications of United States V. Jones and Prolonged GPS Monitoring

Article excerpt

In United States v. Jones, the United States Supreme Court confronted a novel Fourth Amendment warrantless search issue when the Government installed a Global Position System ("GPS") device on a suspected criminal's vehicle to monitor his movements for a month. Because of GPS technology's pervasiveness in modern society, as well as its potential for abuse, courts and legal practitioners need clear guidance in this area of law. In Jones, however, the Court's opinions only served to obscure further an already long and complex body of Fourth Amendment jurisprudence. Even though the Court unanimously concluded the Government had conducted an unreasonable search, the justices disagreed in their reasoning. The majority found that the Government committed a trespass by installing the GPS device on Jones's vehicle to gather information. By focusing on the physical trespass, however, the majority invoked a cursory and antiquated approach to search analysis that the Court had abandoned over fifty years earlier. Justice Alito identified this shortcoming in his concurring opinion and argued that the majority should have analyzed the search question under the Katz v. United States "reasonable expectation of privacy" test. Although Justice Alito identified the appropriate test for the search question, he did not go far enough in his analysis. Therefore, practitioners must turn to the opinion by the D.C. Circuit Court of Appeals in an earlier disposition of the Jones case to understand fully the appropriate analysis under the Katz "reasonable expectation of privacy" standard. In addition, neither the majority nor concurring opinions sufficiently considered the question of whether the government had seized Jones's vehicle under the Fourth Amendment. Such an inquiry is another viable and common sense argument practitioners should use in cases involving prolonged electronic surveillance. In such cases, practitioners should argue that the installation of such devices is a seizure under the Fourth Amendment as defined in the United States v. Place line of cases.

I. INTRODUCTION

The Fourth Amendment provides for "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and

seizures." (1) The United States Supreme Court has determined that the Amendment protects two distinct expectations, one concerning "seizures" and another concerning "searches." (2) While the term "seizure" is most often used in reference to a person, (3) the Court has summarily defined a seizure of property as "some meaningful interference with an individual's possessory interests in that property." (4) Correspondingly, the Court has summarily determined that a "search" occurs when the Government infringes upon "an expectation of privacy that society is prepared to consider as reasonable." (5) Although alleged violations of these two rights frequently arise in federal criminal trials, the development of these two areas of law, especially in the face of increasingly sensitive technology, "has not--to put it mildly--run smooth." (6)

In United States v. Jones, the United States Supreme Court addressed the issue of whether the Government, acting without a valid warrant, could attach a GPS device to a suspected criminal's car and monitor his movements for a month. (8) Previously, the United States Court of Appeals for the District of Columbia Circuit ("D.C. Circuit") concluded the Government infringed upon Antoine Jones's reasonable expectation of privacy and reversed his conviction. (9) Describing Jones's vehicle as a "constitutionally protected area," the Supreme Court majority disregarded the D.C. Circuit's holding and ruled that the Government had committed a Fourth Amendment search of Jones by physically intruding upon the vehicle to gather information. (10) Justice Alito's concurring opinion, on the other hand, argued that the Court should have analyzed the issue under the "reasonable expectation of privacy" inquiry developed in the Katz v. …