The court concluded the search warrant, which was provided for the installation of the device within ten day limit, but agents did not install the device until the eleventh day in Maryland and the government then tracked the vehicles movements for 28 days.
Justice Scalia’s opinion, declared that because the tracking device was physically placed on Jones’ property, “at a minimum” it was a search within the original meaning of the Constitution’s ban on searches of property without a warrant.
Justice Alito said the property rationale makes no sense and disregards a half-century of Supreme Court doctrine. To approach the issue as a question of trespass on private property said Alito is simply “unwise.” What matters, he said, is the reasonable expectation of privacy in a modern world. Smartphones, for instance, can disclose an individual’s location unless the internal locator devices are turned off, and email contacts are similarly recorded by providers. How does the fourth amendment apples to cellular phones or email? There are questions of high-tech surveillance that do not involve a trespass.
Justice Sotomayor, while signing on to the Scalia opinion, suggested that the entire framework used in the past may well be “ill-suited to the digital age.” She opined that because people now, “reveal a great deal of information about themselves in order to carry out mundane tasks,” it may be time to reconsider past decisions that allow police to get information without a warrant from third parties like phone companies or banks or email providers.
In another recent federal case, the court considered whether federal narc’s violated the fourth amendment when they failed to get a search warrant before using a GPS device on an automobile to track a suspect’s movements. State and Federal Courts are divided on whether GPS tracking requires a search warrant. Generally, surveillance of someone traveling on an open road does not intrude on an expectation of privacy protected by the fourth amendment. A driver traveling over public streets voluntarily conveys to anyone that wants to look the fact that he is traveling over a particular road, that certain stops are made, and the fact of a final destination. The court ruled that this is neither a search nor seizure and in this case a beeper was placed inside a five gallon container of chloroform, a precursor chemical the court clearly allowed this procedure.
The FBI and the D.C. Metropolitan Police Department placed a GPS device in the defendant’s vehicle to track his movements 24 hours a day for 28 days. The court concluded this was exposing the defendant’s reasonable explanation of privacy in his movements and thus was a “search.” The prolonged GPS monitoring revealed an intimate picture of the defendant’s life.
Unlike one’s movements during a single journey, the whole of one’s movement over the course of a month is not actually exposed to the public because of the unlikelihood that anyone would observe all of these movements for that long of period. The whole of one’s movements is not exposed constructively even though each individual movement may be exposed.
In this case, the LAPD affixed a GPS device to a passing car simply by launching a GPS—enabled dart. Due to the sophistication and novelty the advent of GPS technology now occasions a heretofore unknown type of intrusion into an ordinarily and hitherto “private enclave.” The dart consists of miniaturized GPS receiver, radio transmitter, and battery embedded in a sticky compound material. When fired at a vehicle the compound adheres to the target and permits a remote real-time tracking of the target from police headquarters. GPS darts are used in exigent circumstances and for only as long as it takes to interdict a subject driver without having to engage in a high speed chase on a public way.
When courts consider conduct by private citizens, several states have criminalized the surreptitious used of devices for non-consensual tracking. In one case, a husband placed a GPS device in his wife’s car to track and record the location of the device. To retrieve the recorded information, he stored a chip in the device and then uploaded it to his home computer. He then proceeded to burn his wife’s clothing and harass her by stalking and was given a concurrent four year intensive term of supervised probation. The court “perceived no significant difference between gaining this type of personal information by physically following the wife and by using a device designed to achieve the same result.”
The court determined that his motive was to instill fear in his victim by demonstrating that he had the ability to know where she was and what she was doing at any time. He accomplished that, and was found guilty of stalking since under state law. He was “placed under surveillance” in a manner that caused a reasonable person to suffer serious emotional distress.
There are still many questions that remain unanswered on how should the fourth amendment apply our to our rapidly changing world. Stay tuned for future court decisions.
565 U.S. 400 (2012).
 389 U.S. 347 (1967).
 533 U.S. 271 (2001).
 647 F.3d 216 (5th Cir. 2011).
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