SCOTUS Unanimously Supports Fourth Amendment


It’s not very often that the Supreme Court justices all agree on something that’s really good. On Monday, they ruled unanimously that the government has to get a search warrant before putting a GPS unit on your vehicle to track your movements. That this astonishingly obvious fact required a Supreme Court ruling says a great deal our government, under either party. You can read the full ruling here.

There were actually three written opinions, all of them agreeing on the outcome but with different means of reaching that conclusion. The controlling opinion was written by Justice Scalia and joined by Chief Justice Roberts and Justices Thomas, Kennedy and Sotomayor. Sotomayor also wrote her own concurring opinion. And Justice Alito filed a concurring opinion, which was joined by Justices Ginsburg, Breyer and Kagan.

The case is really interesting for many reasons. And the government actually did get a warrant to place the GPS unit on the guy’s jeep, but the warrant said it had to be done within 10 days and in the city of Washington, DC. But they didn’t put it on until the 11th day and in a public lot in Maryland. The evidence was used at his trial, after which he was convicted, but both the U.S. District Court and the Court of Appeals for the D.C. Circuit ruled that the GPS evidence was inadmissible and the Supreme Court has now upheld those rulings.

The difference among the three opinions is a matter of scope. Scalia’s majority opinion was the most narrow; Alito’s concurrence was a bit broader; and Sotomayor’s solo concurrence was very broad. I don’t have time right now to go into detail, but you can read the rulings yourself.

It’s also interesting to note that this was yet another case where the Obama administration was clearly in the wrong on a key Bill of Rights issue. Obama’s solicitor general argued the case and filed the government’s brief arguing that putting a GPS on someone’s car is not a search at all under the 4th amendment. That the Supreme Court rejected that argument unanimously, right and left alike, speaks volumes about just how dangerous and crazy that position is.

And like Radley Balko, I should now admit that my fears about Sotomayor were unfounded. During her confirmation process, I several times noted that, based on her record as a federal prosecutor and a lower court judge, I was concerned that she would end up being too conservative on criminal justice cases. She has turned out, in her brief time on the court, to be quite the opposite. And I’m greatly relieved by that fact.

Comments

  1. Aquaria says

    If there were a hell, I think it would have frozen over. All of them agreeing happens that rarely, it seems.

  2. says

    When I first heard about the ruling, I was glad sanity managed to eek out a majority. Now I notice the “unanimous” part. I don’t know how to interpret this information, especially since it sounds too good to be true.

  3. The Lorax says

    The Judicial branch seems to be doing the best job at upholding the Constitution. Funny, how certain members of the Legislative branch which are currently gunning for the top position of the Executive branch are interested in bringing down the Judicial branch.

    If the Constitution of the United States was one inch closer to them than a roll of toilet paper, they’d wipe their asses on it without flinching.

    … that gives me an idea for an interesting campaign ad…

  4. Randomfactor says

    They didn’t all agree in agreeing. I understand that some of the reasoning involved a strengthening of property rights at the expense of privacy rights–in other words, their violation was in placing their physical presence there without a valid warrant–essentially trespassing–rather than the invasion of privacy provided by the GPS tracking data.

    Not sure it’s all that much to cheer about.

  5. D. C. Sessions says

    The great thing about being a pessimist is that all of your surprises are happy ones.

  6. says

    Actually, it looks like it is too good to be true. It’s still good, but not as good as I thought when I wrote this. I’ll have a follow up on it soon.

  7. says

    D.C.:

    The great thing about being a pessimist is that all of your surprises are happy ones.

    Ed:

    Actually, it looks like it is too good to be true. It’s still good, but not as good as I thought when I wrote this. I’ll have a follow up on it soon.

    This is where I turn to my inner optimist and pessimist and scream, “Quit jerking me around!”

  8. baal says

    This case is the first one in a while that surprised me. The last 30 years have been a massive downgrade in our civil liberties and constraints on the police.

    To have reached a 9-0, the justices must have considered what policing would be like with the opposite outcome. Literally everyone could have been tracked everywhere and all that info kept in a total infor mation aware ness database. They weren’t willing to go that far.

  9. briandavis says

    The great thing about being a pessimist is that all of your surprises are happy ones.

    No. It just makes me think I’ve missed something.

  10. baal says

    After reading the link in 4 – I am also extremely grateful that Justice Sotomayor included the portion on the 3rd party doctrine. I have never agreed that by placing something in the trash I’ve consented to anyone taking or using it. My expectation is that trash will get recycled, incinerated, buried etc. I don’t expect the gov. or my neighbor or someone else to go through it.

  11. David C Brayton says

    One thing that may have swayed the Court is when the advocate for the government said that the government could place a GPS unit on all of the justices’ cars without any reason and track them continuously without a warrant.

    @baal–Here’s a bit of free advice…any time that you abandon something, you no longer have an expectation of reasonable privacy in it. Having an expectation of privacy in crap left on the sidewalk, unguarded and unprotected, where anyone can rifle through it, is pretty much the definition of delusional. If your privacy is important to you, burn your crap yourself.

  12. scienceavenger says

    I guess I could never be a lawyer, I don’t see what is so crazy about the administration’s position. To qualify as a search, they have to be searching for something, and they aren’t. Where in constitutional law is “the government shall not acquire information about a person without a warrant and due process”?

    Yeah, I know, they are physically messing with someone’s property, something I don’t care for at all, but if that is what this case rests on, its foundation is sand. What happens when the government is able to lock a GPS satellite laser onto a car and keep it there to track it? I doubt the 4th will be much defense there.

    IMO technology is going to force society to adjust to way less control of information, and practically no privacy once you leave your home. The government will be filming us at traffic lights, and we’ll be filming cops making stops, and everywhere in between. And once we have more rational laws (crossing all fingers and toes) that may not turn out to be such a bad thing after all.

  13. eric says

    One thing that may have swayed the Court is when the advocate for the government said that the government could place a GPS unit on all of the justices’ cars without any reason and track them continuously without a warrant.

    I wouldn’t hang my hat on such arguments, they haven’t always worked in the past. In the 2005 Eminent Domain case, folks were pointing out that New London’s argument (that the power could be used merely for economic development rather than some stronger necessity) could just as easily be used to take the Justice’s personal homes, at will. That didn’t seem to sway them; they ruled in favor of greater government power.

  14. eric says

    To qualify as a search, they have to be searching for something, and they aren’t.

    They are searching for any evidence of a crime, despite having no reasonable suspicion that you committed one.

  15. scienceavenger says

    Seems a reach to me, since the location of one’s car is going to be weak evidence at best, and circumstantial-to-be-tossed-out at worst. Wouldn’t it be more accurate to say they are trying to get reasonable suspicion, possibly leading to more invasive actions? I mean, if a cop can stand on a corner and observe your car and where it goes, isn’t this just more of the same. OK, a lot more, but where does law recognize emergent properties?

  16. Chris from Europe says

    @scienceavenger
    What would be good about that?

    I don’t see why we should allow monitoring the public sphere like one would expect from a totalitarian state.

  17. scienceavenger says

    I’m a defeatist on this. I don’t think it’s an issue of allowing or not allowing, it can’t be stopped. Look at the difficulty the cops are having trying to stop private citizens from filming them (and good on that). If they can’t stop us, what makes us think we can stop them?

  18. eric says

    if a cop can stand on a corner and observe your car and where it goes, isn’t this just more of the same. OK, a lot more, but where does law recognize emergent properties?

    Well, I’d call them quantitative distinctions not emergent properties. As you say, doing ‘more of something’ that they can already do.

    The law recognizes quantitative distinctions in a lot of areas. The police can pat you down for just about anything; but cannot strip search you without some reasonable suspicion of some specific crime. They can set up sobriety checkpoints, but can’t take blood without your permission. As Ed mentioned, they can look at your house with binoculars, but not IR scanners. They can knock on your door and ask you questions, but can’t come in without permission or reasonable suspicion or a warrant). And related specifically to this matter, they can post a radar gun-toting cop at a corner or a speed camera at an intersection, but can’t lowjack your car without a warrant.

    GPS is just a smaller, less intrusive lowjack.

  19. exdrone says

    Roberts – “Rock, Paper, Scissors, Shoot.”

    Scalia – “Rock”
    Kennedy – “Rock”
    Thomas – “Rock”
    Ginsburg – “Rock”
    Breyer – “Rock”
    Alito – “Rock”
    Sotomayor – “Rock”
    Kagan – “Rock”.

    Roberts – “Okay, that was weird. Again, Rock, Paper, Scissors, Shoot …”

  20. llewelly says

    … and practically no privacy once you leave your home.

    There’s nothing magical about your home, which makes technology less able to invade your privacy there. In fact, if you’ve an internet connection there, much the reverse.

    And once we have more rational laws (crossing all fingers and toes) that may not turn out to be such a bad thing after all.

    Legislation resembles a rational process only slightly more than a purely random process. After society has had a generation or two to adjust to the circumstances …

  21. llewelly says

    I don’t see why we should allow monitoring the public sphere like one would expect from a totalitarian state.

    The technology is very quickly making it trivial, and then making it necessary to the very operation of our modern society; in 10 years, or less, it will be as hard to prevent as the illegitimate copying of movies, music, and software, and for largely similar reasons.

    Ask yourself how many people use facebook, and how many people do so because they have no other way to communicate with certain friends and relatives? Ask yourself how many people own a phone with CarrierIQ or other phone company or vendor installed spyware.

    This SC decision is a good sign that maybe the change can be slowed enough for us to adapt … maybe.

  22. F says

    What happens when the government is able to lock a GPS satellite laser onto a car and keep it there to track it?

    What if your car already comes with a tracking service right now?

  23. valhar2000 says

    She has turned out, in her brief time on the court, to be quite the opposite. And I’m greatly relieved by that fact.

    Pessimism is vindicated! When you posted about her track record as a prosecutor I immediately assumed that worst outcome from her tenure in SCOTUS, and now I get to be pleasantly surprised.

    I also very pleasantly surprised by Scalia here. Maybe the new professionalism is getting old?

  24. briank says

    Ed,
    I saw in one of the comments that you read a little deeper. As you now probably now know, this ruling is a minor, trivial one. The mainstram press is lauding it without giving the finer points.

    Also, please cover Google’s recent declaration about consolidating all your personal data (I recommend the Duckduckgo search engine instead).

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