The Lawletter Vol 36 No 8
In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court held that the attachment by police of a Global-Positioning-System ("GPS") tracking device to a vehicle, and the subsequent use of that device to monitor the vehicle's movements on public streets, constituted a "search" within the meaning of the Fourth Amendment. In Jones, police, without a valid warrant, attached the GPS device to Jones's vehicle and tracked the vehicle's every movement for 28 days. Holding that Jones had had no reasonable expectation of privacy when the vehicle was on public streets, the trial court denied Jones's motion to suppress the data obtained, and Jones was ultimately convicted on drug charges. On appeal, the court of appeals reversed, holding that the attachment of the GPS device to the vehicle and its use to monitor the vehicle's movements constituted a search. See Mark Rieber, Search and Seizure: Wireless Use of GPS Device on Defendant's Vehicle Found to Be a Search, 35 Lawletter No. 12.
The Supreme Court, in an opinion by Justice Scalia, affirmed the decision of the court of appeals. All nine Justices agreed that the surveillance had violated Jones's rights, but they split on their reasoning. Five Justices, however, concluded that the physical act of placing the GPS device on the vehicle constituted a search under the Fourth Amendment.In a concurring opinion joined by four Justices, Justice Alito stated that in light of all the possible ways of monitoring a person's movements that do not require a physical intrusion or trespass, he would have analyzed the question presented by asking whether Jones's reasonable expectations of privacy had been violated by the long-term monitoring of the vehicle he drove rather than deciding the case "based on 18th-century tort law" related to trespass. 132 S. Ct. at 957 (Alito, J., joined by Ginsburg, Breyer, and Kagan, JJ., concurring in judgment).