Keynote Address: The Supreme Court Needs to Enter the 21st Century WSC Conference, 2012, Newport Beach, California

By Chemerinsky, Erwin | Western Criminology Review, August 2012 | Go to article overview

Keynote Address: The Supreme Court Needs to Enter the 21st Century WSC Conference, 2012, Newport Beach, California


Chemerinsky, Erwin, Western Criminology Review


Keywords: Supreme Court, Fourth Amendment, technological surveillance,

Technology has given the police an unprecedented ability to gather information about people. With increasing frequency courts face the question of when technological monitoring without a warrant violates the Constitution. Imagine, for example, that law enforcement uses a drone to track someone's movements or to gather images of what is going on in a backyard, or even within the home. Does that constitute a search for purposes of the Fourth Amendment?

The Supreme Court has yet to begin to develop an analytical approach to deal with such situations. This should not be surprising; it took the Court a long time to enter the 20th century. The Court first considered whether wiretapping constituted a search in 1928 in Olmstead v. United States. The Court held that electronic eavesdropping is not a search unless police physically trespass on a person's property. In other words, it was not a search so long as the police could tap the phone without entering the home. It was not until 1967, in Katz v. United States, that the Court departed from this narrow approach and held that in determining whether a search had occurred the focus must be on whether there was an invasion of the reasonable expectation of privacy.

The hope is that the Supreme Court will much more quickly adapt the Fourth Amendment to the new technology of the 21st century, but its recent decision in United States v. Jones provides little basis for optimism. In Jones, the Supreme Court considered whether the police, in placing a GPS device on a person's car and tracking its movements, had violated the Fourth Amendment when there was not a warrant authorizing this action. The case involved Antoine Jones, who the police suspected of cocaine trafficking. The investigation included visual surveillance of Jones and the area around his nightclub, the installation of a fixed camera near the nightclub, a pen register which showed phone numbers of people called or receiving calls from Jones's phone, and a wiretap for Jones's cellular phone.

Additionally, the police obtained a warrant authorizing them to covertly install and monitor a GPS tracking device on a Jeep Grand Cherokee registered to Jones's wife, but used extensively by Jones. The warrant required that the device be installed within a 10-day period and only in the District of Columbia. Police installed it on the eleventh day and while the car was in Maryland. Both sides thus agreed that this was a warrantless planting and monitoring of the device. This could turn out to be very relevant in the Supreme Court's decision: it shows that the police can easily get warrants for the use of such tracking devices.

The police used the device over a four week period. Based on all of the information gained, the police obtained and executed a search warrant and cash and drugs were found.

After Jones was indicted, he moved to suppress the information gained from the GPS tracking device. The district court held that the information gained from the movement of the car on public roads was admissible, but that any data gained from the car while it was parked in Jones's garage at home had to be suppressed. Jones was tried and acquitted on multiple charges, but the jury could not reach a verdict on the conspiracy charge, and on that a mistrial was declared. Jones was then retried for conspiracy to distribute five kilograms or more of cocaine and fifty grams or more of cocaine base. The GPS logs were important at trial in that they were used to link Jones to the "stash house." This time, the jury convicted Jones of the conspiracy for which he had been indicted. The district court sentenced Jones to life imprisonment and ordered him to forfeit $1,000, 000 in drug proceeds.

The United States Court of Appeals for the District of Columbia Circuit found that the warrantless following of Jones via the GPS device was a search within the meaning of the Fourth Amendment. …

The rest of this article is only available to active members of Questia

Sign up now for a free, 1-day trial and receive full access to:

  • Questia's entire collection
  • Automatic bibliography creation
  • More helpful research tools like notes, citations, and highlights
  • Ad-free environment

Already a member? Log in now.

Notes for this article

Add a new note
If you are trying to select text to create highlights or citations, remember that you must now click or tap on the first word, and then click or tap on the last word.
One moment ...
Default project is now your active project.
Project items

Items saved from this article

This article has been saved
Highlights (0)
Some of your highlights are legacy items.

Highlights saved before July 30, 2012 will not be displayed on their respective source pages.

You can easily re-create the highlights by opening the book page or article, selecting the text, and clicking “Highlight.”

Citations (0)
Some of your citations are legacy items.

Any citation created before July 30, 2012 will labeled as a “Cited page.” New citations will be saved as cited passages, pages or articles.

We also added the ability to view new citations from your projects or the book or article where you created them.

Notes (0)
Bookmarks (0)

You have no saved items from this article

Project items include:
  • Saved book/article
  • Highlights
  • Quotes/citations
  • Notes
  • Bookmarks
Notes
Cite this article

Cited article

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

(Einhorn, 1992, p. 25)

(Einhorn 25)

1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited article

Keynote Address: The Supreme Court Needs to Enter the 21st Century WSC Conference, 2012, Newport Beach, California
Settings

Settings

Typeface
Text size Smaller Larger Reset View mode
Search within

Search within this article

Look up

Look up a word

  • Dictionary
  • Thesaurus
Please submit a word or phrase above.
Print this page

Print this page

Why can't I print more than one page at a time?

Full screen

matching results for page

Cited passage

Style
Citations are available only to our active members.
Sign up now to cite pages or passages in MLA, APA and Chicago citation styles.

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn, 1992, p. 25).

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences." (Einhorn 25)

"Portraying himself as an honest, ordinary person helped Lincoln identify with his audiences."1

1. Lois J. Einhorn, Abraham Lincoln, the Orator: Penetrating the Lincoln Legend (Westport, CT: Greenwood Press, 1992), 25, http://www.questia.com/read/27419298.

Cited passage

Welcome to the new Questia Reader

The Questia Reader has been updated to provide you with an even better online reading experience.  It is now 100% Responsive, which means you can read our books and articles on any sized device you wish.  All of your favorite tools like notes, highlights, and citations are still here, but the way you select text has been updated to be easier to use, especially on touchscreen devices.  Here's how:

1. Click or tap the first word you want to select.
2. Click or tap the last word you want to select.

OK, got it!

Thanks for trying Questia!

Please continue trying out our research tools, but please note, full functionality is available only to our active members.

Your work will be lost once you leave this Web page.

For full access in an ad-free environment, sign up now for a FREE, 1-day trial.

Already a member? Log in now.