Writers often ask about searches, and this week, the U.S. Supreme Court answered a big question: Are police required to obtain a warrant before placing a GPS tracking device on a vehicle? Yes, the Court said, agreeing unanimously on the outcome, but splitting 5-4 on the reasoning. Justice Antonin Scalia wrote the majority opinion, holding that the government’s actions, through law enforcement, in attaching the device and using it for surveillance constitute a search under the Fourth Amendment.
Read a Washington Post article on U.S. v. Jones or the full Supreme court opinion.
The Fourth Amendment provides in part that”[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” A vehicle is an “effect.”
Police and FBI obtained a warrant allowing them to place a GPS unit on a Jeep registered to the wife of suspected drug trafficker Antoine Jones within ten days, while it was still in Washington, D.C. They placed the device eleven days later, in Maryland, and tracked Jones’s movements for 28 days. The government acknowledged it had violated the warrant, but asserted that a warrant wasn’t necessary. The GPS evidence was critical in obtaining his conviction in the U.S. District Court for the District of Columbia. The appeals court reversed, and the Supreme Court upheld the reversal. According to the Washington Post, the U.S Attorney for the District of Columbia has not yet decided whether to retry Jones. No doubt the decision will turn on the strength of other evidence.
The Jeep was registered to Jones’s wife, but he was the exclusive user. The government did not challenge his right to challenge the warrant and move to suppress the evidence.
Writers, keep in mind that some state courts have long held that a warrant is required under state constitutions.
Note that following and physically observing a suspect are different than using a GPS device. Visual observations of movements on a public street are not searches.
The Jones decision is relatively narrow, focusing on the facts presented by this specific case. It does not answer other questions raised by changing technology: Does electronic surveillance that doesn’t require physical trespass, like cell phone tracking, constitute a search? Will society’s changing expectations of privacy–think of all the once-private information we now disclose online and elsewhere, wittingly and not–change how courts analyze the right to privacy?
Of course, a warrant won’t always be necessary. Consent by a owner-of-record, e.g., a spouse who’s on the title, may suffice–and writers can easily conjure situations where consent might be given. (Consent wasn’t an issue in Jones, and the Court didn’t discuss it.) Could an estranged spouse who’s still got an ownership interest but no longer exercises any control over the vehicle give valid consent? Maybe, maybe not. But I do think a lender lienholder could not give valid consent. And state constitutions may require protection in areas that the federal constitution does not.
Remember, the Constitution applies only to acts by the government, not private persons. This decision doesn’t apply to your fictional PI who gets his client’s consent to put a GPS unit in a vehicle the client jointly owns with her spouse to track the cheating SOB.
Writers, you may want your fictional law enforcement officers to follow the law, or flout it. You may want GPS evidence excluded so your fictional prosecutors have to look elsewhere. Or you may have a PI working a civil case and not affected by the ruling in Jones. That’s the beauty of fiction: you get to make up your own facts.
Now, get back to your keyboards.
(Photos from Supreme Court website.)
Another good post, Leslie. As you suggest, this decision does offer some interesting possibilities–and dilemmas–for crime fiction writers, especially for those of us doing police procedurals.
Dilemmas are good for writers!
Interesting reading – thank you for posting the information.
I know that some state laws vary from others – which can make for an interesting life if you are the one in the middle of such a Catch 22 –
But a better question would be, in the case of a stolen car or a kid napping with a car that has a GPS in it, can the car or cell phone be traced without the court issuing a warrant to follow or have the GPS traced – that would be a case of imenate danger – so what would the law say in that situation
Misty, the Court in Jones did not address that — entirely different facts and legal issues. A thief or kidnapper doesn’t have a reasonable expectation of privacy in a stolen car! But warrants aren’t typically required in “exigent circumstances” — e.g., to stop a crime in progress or protect human life, so I’m reasonably fairly sure law enforcement could use cell phone or GPS tracking in that situation.
Thanks, Leslie, for this timely explanation–and for making it easy to understand.
Good post Leslie. Here’s a question you may not have considered and I’d be interested in your opinion, re consent of one spouse. How about, if the car is not titled in the consenting spouses name, but the state they live in is a “community property state.” Whereby (assuming the vehicle was not purchased pre-matrimony and was purchased with “community funds”) all personal property for argument’s sake is considered “community” then could the un-titled spouse give consent even though her name is not on the title or registration?
Thanks, Steve. Interesting question. In Jones, the Supreme Court noted that his Jeep was actually registered to his wife — he had no ownership interest, but was acknowledged to be the exclusive user. The government did not challenge his standing to assert 4th Am rights related to it — and the lower court had issued the warrant, even though Jones wasn’t legally the owner. So technical aspects of ownership don’t seem to be key in warrant issues. How relevant will they be in consent issues? Don’t know. Seems like the analysis should be the same, but I don’t know — though I expect state and lower courts have dealt with it. My best guess is that courts would look at how the spouses viewed the vehicle and their reasonable expectations of privacy — e.g., the spouses consider it a family car although one spouse usually drives it, both have keys, and both are on the insurance. Particularly strong argument that either spouse could consent in a community property state, where all assets and income belong to the marriage, but I suspect the argument that either spouse could consent would prevail in most typical situations, despite technical status of ownership. If you hear about a case and decision, let me know!
I don’t know about today, but when I was stationed in Charleston, South Carolina in the early 80’s, I literally have to have a note that was signed & noterized by by husband to drive the one car that didn’t have my name on it and he had to have a writen, notorized note from me – he would have been held ultimately responsible for anything that happened with his car & me driving & Visa versa – oh! The note was only good for one year – so if we had a car for more than a year , then we had to renew the notes —
What really made things bad was that we were both in the Navy & he was often deployed for months on end — back then phone calls were really hard to make and get connected
Don’t know if this will help but it’s what I went through
Misty, that sounds like an antiquated rule particular to the Navy or that base — and a PITA! I’ve handled hundreds of auto accident cases over my career and never heard anything like it–especially because auto insurance is typically in both names and covers all members of the household for all vehicles owned by any insured. See my comments to Steve on the effect of ownership.
Thank you so much for this timely post! You addressed questions I’ve had since this ruling. Your answers put me at ease about my story. Thanks again!
Nice to hear that — thanks!
Great psot, Leslie, and a keeper. Thank you!
Thanks for the helpful post, Leslie. I’m saving it for future use!