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Government Tracking | Traverse City Criminal Attorney

Are They Tracking You?

I. Background

In the case of the United States v Jones, decided on January 23, 2012, the Supreme Court took a stand for liberty. The facts of the case center around the Defendant, Antoine Jones, who was suspected of trafficking narcotics. Agents attached a global positioning system (GPS) tracking device to his vehicle and then tracked the movement of the vehicle for almost a month. Ultimately, he was charged with conspiracy to distribute up to 5 kilograms of cocaine, among other charges.

Before trial, Jones filed a motion to suppress the evidence gained against him because of this GPS tracker. Specifically, Jones was relying on the Fourth Amendment to our Federal Constitution, which states, in part:

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 trial court (called the District Court in the federal system) granted Jones’s motion to suppress, but only partially. Specifically, they held that any evidence while Jones’s vehicle was parked at his house was not useable; however, any information gleaned while the vehicle traveled about was lawfully obtained. The Court reasoned that the data obtained while traveling was admissible because “a person traveling in an automobile on a public thoroughfare has no reasonable expectation of privacy in its movements from one place to another.” Id., quoting United States v Knotts, 460 US 276, 281 (1983).

Jones’s first trial in 2006 ended in a hung jury, but in 2007, upon re-indictment, he was convicted and sentenced to life in prison. The Court of Appeals reversed the conviction because it held that admission of any of the evidence obtained by a warrantless use of the GPS device violated the Fourth Amendment. The government appealed that holding, and thus did the United States Supreme Court hear the case and decide it.

II. The Court’s Legal Reasoning

The Court started out by framing the issue in this case as:

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.

Indeed, the Court cited a case from 1765 entitled Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765) which holds a beautiful piece of writing regarding our liberty interests:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.” Entick, supra, at 817.

The Court talked about some of the holdings that occurred in the latter half of the 20th century that seemed to cut against the holding in the Jones case. Specifically, it talked about cases having to do with wire taps, but justified the differentiation based on the fact that there was “no entry of the houses or the offices of the Defendants,” as the taps were done on wires away from the aggrieved house.

Similarly, the Court cited Katz v. United States, 389 U. S. 347, 351 (1967), where it held that “the Fourth Amendment protects people, not places,” thus, approving an eavesdropping device that was placed on a public telephone booth. In the Jones case, the government contended that Mr. Jones had no “reasonable expectation of privacy” in the area of his vehicle accessed by government agents (its underbody) and in the locations of that Jeep while on the public roads.

The government relied on the Knotts case, but that case had an important factual difference. Specifically, the owner of a certain can of chemicals allowed the government to place a “beeper” in the can. He then distributed the can to a suspect and that suspect, unbeknownst to him, was tracked by the “beeper” that was inside of the can he had accepted from the original owner. The court found in Knotts that since the original intrusion was with the consent of the then-owner, the 4th Amendment had not been violated. The government also tried to use a similar case called United States v. Karo, 468 U. S. 705, 713 (1984). The Court differentiated the Karo case utilizing the same reasoning as Knott.

Ultimately, the Court upheld the decision of the Court of Appeals. The Court suppressed all the evidence obtained against Defendant Jones by the government’s unlawful use of the GPS tracker that had been attached to his vehicle without a warrant.

There are two separate concurrences, and Justice Sotomayor was one of the authors. She took a very strong stand toward additional personal liberty, and was specifically forward-looking in regards to the new digital age. The essence of her reasoning was that the Supreme Court would be challenged in the future regarding the privacy expectations of individuals in their most mundane activities covered by computers in one fashion or another. Some of the examples she gave were website usage and the government obtaining warrantless disclosures of websites that someone may have visited, or perhaps tracking the online retailers, books, groceries and medications that a given citizen might purchase over the internet. Justice Alito, joined by an unlikely list of associate judges, concurred in the result, but provided an analysis that appeared to be much less favorable toward liberty interests.

Indeed, as Justice Sotomayor suggested, it will be interesting to see how this Court handles issues in the future, as technology advances far beyond what we now perceive as the possible “future.” If one thinks back 100 or even 50 years ago, the technology that the average American utilizes and benefits from today was absolutely unimaginable at those times.

Robert Whims

Whims Legal Group, PLC

12935 S. West Bay Shore Drive

Traverse City, MI 49684

Telephone: 231-938-6099

Facsimile: 231-421-6686

Mr. Whims is a criminal defense attorney and owner of Whims Legal Group, PLC, in Traverse City, Michigan. Prior to that he was a prosecutor in Southern California for over a decade assigned to prosecute gang cases. He is a past board member of the Criminal Defense Attorneys of Michigan.

To be clear, the GPS tracker originally was taken out with a warrant, but the warrant specifically required that the tracker be placed within ten (10) days and within Washington D.C. Instead, the tracker was not placed on the defendant’s vehicle until the eleventh day, and it was done in the State of Maryland. Thus, there was no warrant to justify this otherwise unlawful placement of the GPS tracker.

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