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.
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.
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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.
In filing these briefs, our firm was joined by distinguished co-counsel: Joseph W. Miller, 2010 Republican Candidate for U.S. Senate in Alaska; Gary G. Kreep, Executive Director of U.S. Justice Foundation; and civil libertarian Mark B. Weinberg.
In both of these briefs, we urged the Court to re-examine the Fourth Amendment text based on its historic roots, and return to its early precedents which rested upon traditional common law principles protecting private property from Government intrusions. Writing for the majority, Justice Scalia did just that.
The government’s brief denied that the attachment of the GPS device to Jones’ Jeep Cherokee, generating 2,000 pages of information, during the course of a month of monitoring, without his consent, or the benefit of a search warrant, was a “search” or a “seizure” and argued the Fourth Amendment did not even apply.
Opening the majority opinion with a citation to a 1765 English case, Entick v. Carrington, Justice Scalia laid the foundation for the decision as the original meaning of the text: “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 Fourth Amendment when it was adopted.”
Justice Scalia reinforced his reliance on Entick, citing two Supreme Court opinions decided 100 years apart, celebrating Lord Camden’s opinion as a “monument of English freedom,” which set forth “in plain terms the significance of property rights in search and seizure analysis.” Quoting from the opinion, Scalia wrote: “[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 not damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.”
After this brief history lesson, Justice Scalia turned to the constitutional text: “The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to ‘the right of the people to be secure against unreasonable searches and seizures'; the phrase ‘in their persons, houses, papers and effects’ would have been superfluous.”
Then, in a remarkably frank admission as to how far from the text the Court has strayed, Justice Scalia stated that “our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century [but] [o]ur later cases … have deviated from that exclusively property-based approach” in favor of a more flexible, modernist analysis based upon the court’s perceptions of a “reasonable expectation of privacy.”
Dismissing the Government’s exclusive reliance upon the proposition that the installation of the GPS tracking device did not violate anyone’s privacy expectation, Justice Scalia maintained that “Jones’s Fourth Amendment rights do not rise or fall with the [privacy] formulation.” Rather, he observed that “for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers and effects’) it enumerates.”
Having concluded that Jones’s vehicle was a protected “effect,” Justice Scalia refused to even consider whether Jones had any expectation of privacy, the Government having admittedly trespassed on his private property. In its refusal to reach the privacy issue, the majority restored the view that the Fourth Amendment is, first of all, primarily designed to protect private property and that the “reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test.” (Italics original.)
Our amicus brief had urged the Court to take one step further, rejecting the privacy test altogether as an unsuitable legal standard to protect the private property interest that the Fourth Amendment was designed to protect. Properly understood and applied, a property-based Fourth Amendment would protect everything that a privacy doctrine would protect — and much more, as it would fix our protections in the Constitutional text rather than the subjective perceptions of the Justices regarding which expectations of privacy are “reasonable.” Nonetheless, by restoring the primacy of the Amendment’s property protection of “persons, house, papers and effects,” the majority has laid a foundation for re-examining the privacy add-on when it does not protect traditional common law property rights, such as the rights in one’s personal conversations and movements.
Indeed, Justice Scalia’s opinion has opened the door to return to an earlier time. In explanation of the Jones majority decision, Justice Scalia stated that the Court was simply “apply[ing] an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted.” (Italics original). From the late 19th century and well into the mid-20th century, the courts consistently held that the Fourth Amendment guarantee prohibited searches for “mere evidence,” even if the Government had probable cause and a warrant. This rule, in turn, was based upon the 18th century property-based ruling in Entick, now reinstated as the foundation for the 21st century property-based opinion in Jones.
The only thing standing in the way of a resurgent and robust Fourth Amendment is Justice Alito’s concurring opinion in Jones, which rested on the judgment of four justices that the GPS tracking of Jones’s Jeep went on for longer than they thought proper and, thus, conflicted with the “reasonable expectation of privacy” test. In truth, Justice Alito seemed annoyed that the Court would base its decision on the original textual meaning of the Fourth Amendment, since it would create “[d]isharmony with a substantial body of existing case law.” Curiously, Justice Alito appeared to agree with the Government that the placing of the GPS device was neither a search nor a seizure, and yet, disagreed with the Government’s conclusion that the use of the device in this case did not violate the Fourth Amendment.
Justice Alito dismissed the majority opinion as being “based on 18th-century tort law” as if nothing that old could be relevant to resolving a Constitutional issue. In fact the decision was reached after a systematic search for the textual meaning of the Fourth Amendment, which is based on property law, and happens to be an 18th Century document. While Justice Alito conceded that “judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person” he preferred that test which was fluid, and evolving, since “new devices will continue to shape the average person’s expectations [of] privacy.”
Significantly, Justice Alito could not win over Justice Sotomayor, who joined the property-based majority opinion, and added a concurring opinion of her own in which she employed the privacy rationale to rule against the Government. Writing for herself, she reinforced the majority’s “trespassory test” to be an “irreducible constitutional minimum,” and at the same time she openly stated that on privacy grounds “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” Whatever the expectation of privacy in such case, there is no question that a person retains a property interest in the information so transmitted that the third party not disclose it to another without the person’s consent.
For years critics of the Court’s Fourth Amendment jurisprudence continually have urged it to modify its standards to adapt the Constitution to meet technological change. It is refreshing to see the Court willing to return to the original principles of liberty as stated in the text, even when that text is in disharmony with its own decisions, and with the modernizing impulse of judicial law-making. Jones is, thus, an encouraging development not only for the Fourth Amendment, but for all areas of constitutional law where the Court has strayed from its original design.
Bill Olson served in three positions in the Reagan administration. Herb Titus taught constitutional law for 26 years, concluding his academic career as founding dean of Regent Law School. They now practice constitutional law together, defending against government excess, at William J. Olson, P.C. They can be reached at firstname.lastname@example.org and followed on Twitter @Olsonlaw.
This article was first published at USJF.net and appears here with their permission.
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