Court Grants Cert. in GPS Tracking Case
by: Grapkoch • June 26, 2011 • no comments
The Supreme Court just granted cert. in a case certain to generate a lot of attention over the next year because of its potential to clarify a recent debate over the limitations (if any) on the use of GPS tracking and what (if any) continuing validity Kyllo v. United States has outside of its limited factual context. That case is United States v. Jones, No. 10-1259, and the Court's order can be found here.
Notably, the Court expanded the scope of the issues it would like to consider beyond those presented by the United States in its petition for certiorari. Now, the two key issues are:
- Whether the warrantless use of a tracking device on petitioner's vehicle to monitor its movements on public streets violated the Fourth Amendment; and
- Whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
In its opinion below, the D.C. Circuit ruled only upon the first QP, holding that the suspicionless use of a GPS tracking device to track the defendant's movements through public streets over the course of four weeks was an unconstitutional "search." Most notably, this decision departed from its sister circuits' decisions in United States v. Forest, 355 F. 3d 942, 951-52 (6th Cir. 2004), United States v. Garcia, 474 F. 3d 994, 997-99 (7th Cir. 2007), United States v. Pineda-Moreno, 591 F. 3d 1212, 1216-17 (9th Cir. 2010), and United States v. Cuevas-Perez, No. 10-1473 (7th Cir. April 28, 2011).
The decision in Maynard (Jones) did so by holding that United States v. Knotts was not controlling in situations where, as here, prolonged surveillance offers an "intimate picture" of a person's life that could not have been obtained without the use of surveillance technology:
A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain "disconnected and anonymous," .In this way the extended recordation of a person's movements is, like the "manipulation of a bus passenger's carry-on" canvas bag in Bond, not what we expect anyone to do, and it reveals more than we expect anyone to know.
Thus, the D.C. Circuit reasoned that this case falls within the definitional scope of "search" as it was set forth in Katz and later emphasized in Kyllo:
Application of the test in Katz and its sequellae to the facts of this case can lead to only one conclusion: Society recognizes Jones's expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation. As we have discussed, prolonged GPS monitoring reveals an intimate picture of the subject's life that he expects no one to have-short perhaps of his spouse. The intrusion such monitoring makes into the subject's private affairs stands in stark contrast to the relatively brief intrusion at issue in Knotts; indeed it exceeds the intrusions occasioned by every police practice the Supreme Court has deemed a search under Katz, such as a urine test, use of an electronic listening device to tap a payphone, inspection of a traveler's luggage, or use of a thermal imaging device to discover the temperature inside a home, Kyllo.
As I noted above, this case is certain to generate a lot of interest in the upcoming months. And, if the D.C. Circuit is correct in its application of the precedent, there is a plethora of creative arguments for which the reasoning in Kyllo could be employed. Keep an eye out on this site for a few of those to pop up in the future, as I've been working on putting together a few with Oregon law specifically in mind.
Until then, more information on United States v. Jones can be found at the SCOTUSblog case page, available here.
