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. …