Law enforcement’s most recent effort to turn America into a Soviet-style surveillance society through the use GPS technology has been rebuffed by a unanimous U.S. Supreme Court. The Court based its opinion on, and breathed new life into, the Fourth Amendment’s protection of the American People against unreasonable governmental searches and seizures. Even better, the Court’s decision was based on the original textual meaning of the Fourth Amendment which was based on property rights, rather than its judge-made, evolving doctrine of privacy. There is reason for hope that in the fight against unlawful searches and seizures; the tide may have been turned.
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In a unanimous decision, the Court ruled that the federal government violated the Fourth Amendment’s ban on unreasonable searches and seizures by surreptitiously, without a warrant, attaching a GPS tracking device on a private vehicle and monitoring the movements of that vehicle on public roads for nearly an entire month. The Government contended that the American people have no reasonable expectation of privacy in a world where the technology available to the government enables it to monitor every American citizen as he moves about on the public highways and byways. The case was United States v. Antoine Jones.
Although the ruling was unanimous, the court split sharply on the reason why the Fourth Amendment was violated. Four justices — Alito, Ginsburg, Breyer, and Kagan — reasoned that the vehicle owner had a “reasonable expectation of privacy” that his movement would not be monitored for such a long period of time. The other five justices — Scalia, Roberts, Thomas, Kennedy, and Sotomayor — put privacy aside, deciding that the search was unreasonable simply because the government, without a warrant, trespassed on the vehicle owner’s private property. (Justice Sotomayor filed a concurring opinion, but also joined in Justice Scalia’s opinion.)
On May 16, 2011, our law firm filed the only amicus brief at the petition stage with the Supreme Court, urging the Court to review the decision of the U.S. Court of Appeals for the D.C. Circuit. That brief, filed on behalf of Gun Owners of America, the US Justice Foundation and other clients, urged the Supreme Court to grant the petition for certiorari and use this case as an opportunity to re-examine the last few decades of its decisions in this area, and return to the property roots of the Fourth Amendment.
In granting the petition, the Supreme Court did just that, ordering the parties to brief and argue the additional issue of whether Jones’ Fourth Amendment rights were violated by the installation (as opposed to the use) of the GPS tracking device, putting the property issue front and center.
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After the Supreme Court granted certiorari, on October 3, 2011, our firm filed yet another amicus brief on the merits in the U.S. Supreme Court on behalf of an widely diverse group of organizations, including two national political parties: Gun Owners of America, Inc., Gun Owners Foundation, U.S. Justice Foundation, Institute on the Constitution, Center for Media and Democracy, Free Speech Coalition, Inc., Free Speech Defense and Education Fund, Inc., DownsizeDC.org, Downsize DC Foundation, Conservative Legal Defense and Education Fund, Declaration Alliance, Restoring Liberty Action Committee, the Lincoln Institute For Research and Education, Policy Analysis Center, Constitution Party National Committee, and Libertarian National Committee, Inc.
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