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Comments on Criminal Issues
March 26, 2012
TECHNOLOGY INVADES PERSONAL PRIVACY
U.S. v. Jones: Government’s Attachment of GPS to Personal Vehicle Constitutes a Search under 4th Amendment
By: Houston Criminal Lawyer John Floyd and Paralegal Billy Sinclair
In a split but unanimous decision, the U.S. Supreme this past January 23rd in United States v. Jones staved off yet another disconcerting attempt by our Government to invade and ultimately destroy personal privacy. It is a concern we have discussed in the past (here). That’s why we are so pleased that the Supreme Court—at least on this issue—unanimously, although for different reasons, came down strong with a ruling that privacy trumps technology.
Antoine Jones owned and operated a nightclub in the Washington, D.C. In 2004, a joint task force of the FBI and D.C. police department targeted Jones for an investigation into suspected drug trafficking. Law enforcement techniques utilized against Jones were comprehensive: visual surveillance of his nightclub, a surveillance camera focused on the front door of the club, and a wiretap on Jones’ cell phone. The results of these surveillance measures produced enough evidence for the authorities to apply for, and secure, a warrant to install a Global Positioning System (“GPS”) on a Jeep Grand Cherokee owned by Jones’ wife. The warrant provided that the GPS be installed in D.C. and within ten days of its issuance.
Apparently the task force did not like the restrictions imposed by the warrant, so they decided to ignore them. The GPS device was installed on the undercarriage of the vehicle on the 11th day after the warrant was issued and in Maryland, not D.C., while the vehicle was parked in a public parking lot. The task force tracked the vehicle over the next four weeks, with the GPS which was capable of establishing its location at any time within 50 to 100 feet. At one point during these four weeks, agents had to replace the GPS’s battery. This was also done in yet another public lot in Maryland. The electronic tracking device generated some 2,000 pages of data during that four-week period.
As a result of all these surveillance efforts, the task force collected enough evidence for the Government to secure a multiple count indictment charging Jones and a number of co-conspirators with conspiracy to distribute and possess five kilograms or more of cocaine and 50 or more grams of cocaine base. Subsequent to Jones’s arrest, his attorney filed a motion to suppress all the evidence obtained through the GPS. The trial court granted part of the motion, suppressing all the GPS data gathered while the Grand Cherokee was parked in a garage adjacent to Jones’s residence. The trial court held the rest of GPS data admissible because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”
A jury in October 2006 heard all the GPS evidence and other evidence presented by the Government. It was not enough. A mistrial was declared because the jury could not reach a verdict. That really should have ended the matter. Most of the Government’s evidence was gathered through the GPS device outside the parameters of the search warrant. Apparently some jurors were put off by the task force’s investigative techniques, particularly the Orwellian nature of the GPS device used. But the Government has unlimited resources, and it will utilize all of them to prosecute the suspected guilty and, in some instances, knowingly prosecute the innocent. The Government was not about to let Antoine Jones escape its laser sights. In March 2007, the Government sought, and secured, another indictment against Jones and his co-conspirators for the same conspiracy. And, once again, the Government used the same GPS data which connected Jones, as the Supreme Court said, “to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base.”
After having a practice run during the first trial, the Government managed to convince the jury to convict Jones the second time around. The trial court sentenced him to life imprisonment.
The Government tainted prosecutorial victory, however, was short lived. The D.C. Circuit Court of Appeals reversed the conviction because the Government used the warrantless GPS evidence. Jones argued the GPS violated his “reasonable expectation of privacy” recognized by the Supreme Court in Katz v. United States, and, therefore, was subject to the “reasonableness” requirement set out by Katz in his Fourth Amendment claims. While the Government agreed the Katz test applied in Jones’s case, it argued Jones had no reasonable expectation of privacy because of the Supreme Court’s decision in United States v. Knotts in which the court held that a “beeper device” used in “tracking” a drug suspect was not a search. The appeals court was not persuaded. It said the Knotts decision did not control because the task force’s actions were a “search” which “defeated Jones’s reasonable expectation of privacy.”
The Supreme Court agreed to hear the case last June. The Court in its January 2012 decision began with an observation it made in a 1977 ruling that the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” The Jones Court said “it is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.” Thus, the Court said the use of a GPS device to monitor a vehicle’s movements is a “search.” In fact, Justice Scalia, writing the majority opinion, said the Government “physically occupied private property” to secure law enforcement information which would have constituted a “search” at the time the Founding Fathers established the Fourth Amendment.
The Court summoned up its 1927 decision in Olmstead v. United States in which it held a wiretap attached to telephone wire on a public street did not constitute a search because “there was no entry of the houses or offices of the defendants.” The Court pointed out Katz deviated from the Olmstead reasoning by finding that the Fourth Amendment was intended to protect people, not property. In effect, the Amendment is a safeguard of an individual’s right to “reasonable expectation of privacy” on his person and in his property.
The Government tried to persuade the Court with the argument that Jones had no “reasonable expectation of privacy” because the task force agents accessed the underbody of the Jeep Cherokee which was visible to anyone. Justice Scalia casually brushed that argument aside, pointing out that Katz did not repudiate the historical protection against Government trespass upon the “persons, papers, and effects” as enumerated in the Fourth Amendment. In support of this position, Justice Scalia pointed to Alderman v. United States, a decision handed down two years after Katz, in which the Court held: “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home …”
Probably the most significant observation made by the Court in Jones was this: “ … it is quite irrelevant whether there was an 18th century analog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”
Many in the legal profession have expressed a growing concern about the Government’s ability to use technology to either access or spy upon our personal privacy. In fact, the Board of Directors of the National Association of Criminal Defense Lawyers (NACDL) on February 19, 2012 adopted a paper prepared by the NCADL’s Fourth Amendment Committee members Mason Clutter and Michael Price with the assistance of summer intent Melissa Weeden. The paper, titled Electronic Surveillance & Government Access to Third Party Records, opened with the following basis for the concern about technology’s invasion upon personal privacy:
“The past twenty-five years have brought dramatic advances in information and communication technologies, from the birth of the World Wide Web and the widespread use of computers, cell phones, personal satellite navigation systems, and other ‘smart’ handheld and tablet electronic communication devices. Such developments have fundamentally altered the way people work, communicate, and socialize, providing a level of convenience, efficiency, and access to information that was previously unimaginable. At the same time, the amount of private information amassed by third parties like Internet service providers (ISPs), email providers, cloud computing services, and cell phone carriers has grown exponentially, creating a culture where this new technology has the potential to invade personal privacy through the creation, collection, and aggregation of such information. Unfortunately, changes in technology have outpaced the law and much of this information is accessible to law enforcement and other government agencies without a warrant based on probable cause.
“Federal law governing the privacy of electronic communications has not been meaningfully updated in over twenty-five years and many federal courts have struggled to adapt Fourth Amendment jurisprudence to the realities of the digital age. Even the Supreme Court has acknowledged that ‘[i]t is not so clear that courts at present are on so sure a ground’ and cautioned jurists to ‘proceed with care when considering the whole concept of privacy expectations in’ electronic communication devices.”
In this massive array of so much personal information cast out into a sea of community access, courts must now decide what information is privacy protected from public accessibility, particularly when it comes to law enforcement investigations. Justice Scalia in Jones gave a glimpse of how the courts must proceed: “The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in which we rejected Fourth Amendment challenges to ‘beepers,’ electronic tracking devices that represent another form of electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the use of a ‘beeper’ that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. We said that there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts possession, with the consent of the container owner. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it.”
The Court said its second “beeper” case, United States v. Karo, did not provide the Government any assistance in the Jones case either. Karo simply addressed a question left open by Knotts: “whether the installation of a beeper in a container amounted to a search or seizure.” As was the case in Knotts, the container in which the beeper was installed in Karo belonged to a third party and did not come into the possession of Karo until later. Thus, the only question before the Court in Karo was whether the installation of the beeper “with the consent of the original owner constitute[d] a search or seizure … when the container is delivered to a buyer having no knowledge of the presence of the beeper.” The Court said it did not. Justice Scalia explained: “The Government, we said, came into physical contact with the container only before it belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy.”
Justice Scalia then distinguished the fact situation of Karo from Jones: “Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location. Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.”
Concurring opinions in Jones by Justices Sotomayor and Alito took issue with the majority’s applying “18th century tort law.” Justice Scalia, perhaps the most “originalist” justice on the court, rebutted this charge: “This is a distortion. What we apply is an 18th century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed.
“The concurrence faults our approach for ‘present[ing] particularly vexing problems’ in cases that do not involve physical contact, such as those that involve the transmission of electronic signals. We entirely fail to understand that point. For unlike the concurrence, which would make Katz the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.
“In fact, it is the concurrence’s insistence on the exclusivity of the Katz test that needlessly leads us into ‘particularly vexing problems’ in the present case. This Court had to date not deviated from the understanding that mere visual observation does not constitute a search … We accordingly held in Knotts that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. Thus, even assuming that the concurrence is correct to say that ‘[t]raditional surveillance’ of Jones for a four-week period ‘would have required a large team of agents, multiple vehicles, and perhaps aerial assistance, our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but this present case does not require us to answer that question.
“And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that ‘relatively short-term monitoring of a person’s movements on public streets’ is okay, but that ‘the use of longer term GPS monitoring in investigations of most offenses is no good.’ That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search occurred depends on the nature of the crime investigated. And even that novelty, it remains unexplained why a 4-week investigation is ‘surely’ too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an ‘extraordinary offens[e]’ which may permit longer observation. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these ‘vexing problems’ in some future case where a classic trespassory search is not involved and resort may be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”
In addition to Justices Sotomayor and Alito, three other justices also agreed the majority should have applied the Katz test along with the historical trespass analysis. As the NACDL pointed out, “Justice Alito would have applied the privacy test instead of the trespass analysis stating that ‘the court reliance on the law of trespass will present particularly vexing problems involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked.’”
The NACDL endorsed similar concerns (non-trespass surveillance and access to third party records) raised by Justice Sotomayor. The Associate Justice wrote: “[A]s Justice Alito notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory-or ownership installed vehicle tracking devices or GPS-enabled smart phone. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion of property, the majority opinion’s trespassory test may provide little guidance. But ‘[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to the Katz analysis.’”
Justice Scalia represents the “cautious” approach for courts addressing electronic surveillance cases. “We’ll cross that bridge when we get to it,” is this classic approach. Be that as it may, we certainly have no problem with Justice Scalia applying “18th century tort law” to the GPS facts in the Jones case. But we also believe, like Justices Alito and Sotomayor, that the Katz test should have been used in conjunction with trespass analysis.
And we also have a different concern than the ones expressed by Justices Sotomayor and Alito. The task force “physically occupied” Jones’ vehicle—something clearly prohibited by the very language of the Fourth Amendment as it was established by the Founding Fathers. But what if an undercover operative working with the task force had given or sold his personal vehicle to Jones with a task force GPS device attached to it with both the operative’s knowledge and consent, would Knotts and Karo permit the admissibility of any evidence gathered from the device while the vehicle was parked at Jones’ residence or only while it traveled throughout the D.C./Maryland area? Is there a difference between a law enforcement placed “beeper” in a container with the owner’s consent and a law enforcement “GPS” device attached to the undercarriage of a vehicle either sold or given to the target of a criminal investigation?
This question was not addressed by the Court. But you can go to the bank that the Court will have to confront, and answer, this question in some future case because federal/state law enforcement task forces will inevitably try to circumvent Jones. And that’s the problem inherent in the trespassory analysis. It implies that law enforcement infringe upon the Fourth Amendment only when they physically invade and occupy a personal vehicle with an electronic tracking device. But in light of Knotts, and to a lesser extent Karo,and because of the conflicting positions in Jones between the trespassory analysis and Katz test, the question left hanging on the constitutional vine is whether the expectation of privacy pre-dates ownership when the vehicle is sold or given to the owner solely in pursuant of a law enforcement investigation.
By: Houston Criminal Attorney John Floyd and Paralegal Billy Sinclair