The Fourth Amendment, Property, and United States v. Jones

Mike Richards

On January 23, the Supreme Court decided United States v. Jones, a case that asked whether government agents who attach a GPS device to a person’s car in order to track that person’s movements have conducted a “search” within meaning the of the Fourth Amendment. The Court unanimously held that such conduct is a search but split sharply in its reasoning.

The facts of the case have been recounted almost endlessly since the decision, so I will give only a short overview. Police suspected that nightclub owner Antoine Jones was trafficking drugs. As part of their investigation, and acting without a valid warrant, police attached a GPS device to Jones’s car and tracked his movements for 28 days. Based on information and other evidence, Jones ultimately was convicted of violating federal drug and conspiracy laws and was sentenced to life in federal prison. The D.C. Circuit reversed the conviction, finding that use of the GPS device constituted a search in violation of the Fourth Amendment. The Supreme Court agreed that government’s conduct was improper and that the Jones’s conviction therefore was invalid.

Writing for a five-justice majority, Justice Scalia relied on an understanding that the Fourth Amendment must protect, at minimum, against common-law trespass to the four categories enumerated in the text of the amendment: persons, houses, papers, and effects. In the Court’s words, “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Slip op. at 4. Because a person’s car is an “effect,” trespass to it with the intent to gathering information is a search. The Court stressed that the line of Fourth Amendment jurisprudence beginning with Katz v. United States, 389 U.S. 347 (1967) that protects reasonable expectations of privacy is an addition to, not a substitute for, a theory of Fourth Amendment protection concerned with physical trespass.

Justice Alito’s concurrence, joined by three other justices, refused to endorse the Court’s test, characterizing the Court’s reliance on “18th-century tort law” to resolve the case as “unwise.” Slip op., Alito, J., concurring, at 1–2. Instead of relying on a historically rooted understanding of the Fourth Amendment, Justice Alito would have resolved the case under the reasonable expectation of privacy test that has dominated the Court’s jurisprudence since Katz. Although he said short-term use of a police-installed GPS would raise no Fourth Amendment issue, the longer period of time at issue in Jones “surely crossed” the line of constitutional impermissibility at an indefinite point. Id. at 13.

Perplexingly, Justice Alito seemed to misread the Court’s opinion to suggest that the Fourth Amendment protects only against physical trespass, rather than setting up parallel inquiries for trespass on the one hand and the Katz privacy inquiry on the other. See Slip op., Alito, J., concurring in the judgment, at 8 (“[I]f long-term monitoring can be accomplished without committing a technical trespass . . . the Court’s theory would provide no protection.”).

Justice Alito is surely correct that the Court avoided a difficult question that it surely soon will face—what happens when the government uses information from a preinstalled GPS device that requires no trespass to chattel. Justice Sotomayor’s concurrence considered that issue at length. Although she joined the Court’s opinion in full, agreeing that the trespass disposed of the case at hand, she observed that future cases framed solely in terms of the privacy interest protected by the Fourth Amendment would require the Court to face many complicated questions. Indeed, she raised the radical if welcome possibility that “it may be necessary to reconsider the premise that an individual has reasonable expectation of privacy in information voluntarily disclosed to third parties.” Slip op., Sotomayor, J., concurring, at 5.

The case almost instantly produced a mass of summary and commentary. Writing for the Volokh Conspiracy, Orin Kerr observed that the case had provoked nearly every possible interpretation from some writer or another, comparing the commentary on the case to a Rorschach test. At Slate, Dalia Lithwick invoked the same analogy to describe the case itself, with each justice seemingly projecting his or her own personal concerns onto the case. Tom Goldstein’s series of three excellent posts at SCOTUSblog chastised the press for mischaracterizing the holding of the case—the Court did not decide that police were required to get a warrant, only that use of the GPS device was a search—and challenged many of the assumptions underlying commentary on the case.

As the volume of commentary generated indicates, Jones raises a number of important implications and questions. First, and most obviously, it shows a continuing willingness on the part of the Court to get in the middle of disputes over the Fourth Amendment and enforce real limits on governmental conduct. Indeed, the Court will decide another Fourth Amendment search case later this term. See Jardines v. Florida, 73 So.3d 34 (Fla. 2011), cert. granted, 2012 WL 28952.

Second, the case is notable for what it does not say: even though the police conduct at issue in the case constituted a Fourth Amendment search, the Court did not decide whether such a search requires police to get a warrant before affixing the GPS tracking device. As Tom Goldstein observed at SCOTUSblog, this particular aspect of the decision seemed to bewilder the press covering the decision, with many articles and headlines in national news outlets flatly and wrongly stating that the Court held that a warrant is required.

Third, although not controlling in Jones, Justices Sotomayor’s and Alito’s explorations of GPS tracking in a purely privacy-based Katz framework is sure to become critical in the Court’s Fourth Amendment jurisprudence very soon.

Paradoxically, possibly the most novel aspect of the opinion is the Court’s reliance on traditional notions of property and trespass. It is true that the Court never expressly held, in Katz or following, that property was irrelevant to the Fourth Amendment inquiry. And indeed, some of the Court’s prior decisions hint at the importance of particular physical locations, particularly the home. See, e.g., Kyllo v. United States, 533 U.S. 27, 31 (2001) (“At the very core of the Fourth Amendment stands the right of a man to retreat into his own home and there be free from unreasonable governmental intrusion.”) (internal quotations and citations omitted). But virtually all of the post-Katz cases deal exclusively in privacy concerns. And as Orin Kerr noted, the trespass standard in Jones, although not completely unmoored from the Court’s precedents, constitutes a new formal test under the Fourth Amendment, even if the Court never actually says as much.

Jones may mark the beginning of a full-fledged move toward property rights as one source of a positive Fourth Amendment constraint. If that is so, it raises the possibility that the Court may someday have to revisit its approach to the so-called open-fields doctrine.

The open-fields doctrine, begins from the rather unremarkable proposition that Fourth Amendment protection against searches “is not extended to the open fields.” Hester v. United States, 265 U.S. 57, 58 (1924). Over the years the Court has stretched the meaning of an “open field” to include, for example, a piece of private property half a mile from the nearest public road, “completely encircled by a perimeter fence,” further protected by “several interior fences, constructed mainly of . . . barbed wire,” further still “enclosed by a wooden fence . . . .” United States v. Dunn, 480 U.S. 294, 297 (1987) (multiple visits by DEA agents to a barn within the fenced-off area not protected by the Fourth Amendment because the barn was in an “open field”). Jones itself disavows any relevance to the open fields doctrine on the ground that an open field is not one of the four categories enumerated in the text of the Fourth Amendment and therefore is not constitutionally protected against trespass. Slip op. at 10. But I wonder whether the Court would be willing to dismiss the implications of Jones in the open-fields context so quickly if squarely confronted with the question. First, because Jones itself makes trespass to the four enumerated categories the constitutional minimum for Fourth Amendment protection, the Court could in the future expand the trespass protection to real property extending beyond the home and curtilege.

Second, a trespass on an open field such as was at issue in Dunn often will involve a technical trespass to an article that could fairly be characterized as an “effect” under the Fourth Amendment, anyway. If, for example, agents must bend or cut a fence in order to gain entry to an “open field,” it’s likely that they’ve violated the Jones test by committing a technical trespass to a constitutionally protected area (an effect, the fence) with the intent of gathering information about the suspect. As I read Jones, that’s a Fourth Amendment search.

The questions that Jones hints at about non-trespassory GPS tracking surely will be a central concern as we attempt to define the permissible limits of police conduct in the face of ever cheaper and more easily accessible technology. But the Court’s invocation of protections based on physical property rights presents another way of thinking about the balance between liberty and security and hopefully will get the consideration it deserves in future cases.