The U.S. Supreme Court United States v. Jones , has concluded that the attachment of a Global Positioning System (GPS) tracking device to a suspect’s vehicle, and subsequent use of that device to monitor that vehicle’s movements on public streets, constitutes an unlawful search or seizure.
Katz v. United States , the Fourth Amendment protects a persons’ “reasonable expectation of privacy” along with the courts “concern for government trespass,” Kyllo v. United States ,
The Court concluded the Search Warrant, which provided for the installation of the device within ten (10) days may have been lawful, but agents did not install the device until the eleventh day in Maryland and the government then tracked the vehicles movements for 28 days.
Justice Antonin Scalia’s opinion, declared that because the tracking device was physically placed on Jones’ property, “at a minimum” it was a search within the original meaning of the Constitution’s ban on searches of property without a warrant.
Justice Samuel Alito said the property rationale makes no sense and disregards a half-century of Supreme Court doctrine. To approach the issue as a question of trespass on private property said Alito is simply “unwise.” What matters, he said, is the reasonable expectation of privacy in a modern world.
Smartphones, for instance, can disclose an individual’s location unless the internal locator devices are turned off, and email contacts are similarly recorded by providers. How does the Fourth Amendment apples to cellular phones or email? There are questions of high-tech surveillance that do not involve a trespass.
Justice Sotomayor, while signing on to the Scalia opinion, suggested that the entire framework used in the past may well be “ill-suited to the digital age.” She opined that because people now ‘ ‘reveal a great deal of information about themselves in order to carry out mundane tasks,” it may be time to reconsider past decisions that allow police to get information without a warrant from third parties like phone companies or banks or email providers.
In an era where “dramatic technological change” is the norm, Congress, rather than the court, is better situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.
Most GPS units only work outdoors, although technology is being developed to pinpoint the location of people inside buildings. This allows police departments to save money other than spending time following and surveillance of suspicious vehicles. It would no longer be necessary to “tail” a vehicle.
In a recent federal case the court considered whether federal narc’s violated the Fourth Amendment when they failed to get a search warrant before using a global positioning system (GPS) device on an automobile to track a suspect’s movements. State and Federal Courts are divided on whether GPS tracking requires a search warrant.
Generally, surveillance of someone traveling on an open road does not intrude on an expectation of privacy protected by the Fourth Amendment. A driver travelling over public streets voluntarily conveys to anyone that wants to look the fact that he is traveling over a particular road, that certain stops are made, and the fact of a final destination. The court ruled that this is neither a search nor seizure and in this case a beeper was placed inside a five gallon container of chloroform, a precursor chemical the court clearly allowed this procedure.
The FBI and the D.C. Metropolitan Police Department placed a GPS device in the Defendant’s vehicle to track his movements 24 hours a day for 28 days. The court concluded this was exposing the defendant’s reasonable explanation of privacy in his movements and thus was a “search.” The prolonged GPS monitoring revealed an intimate picture of the defendant’s life.
Unlike one’s movements during a single journey, the whole of one’s movement over the course of a month is not actually exposed to the public because of the unlikelihood that anyone would observe all of these movements for that long of period. The whole of one’s movements is not exposed constructively even though each individual movement may be exposed.
In U.S. vs. Hernandez,  the Los Angeles affixed a GPS device to a passing car simply by launching a GPS — enabled dart. Because of this sophistication and novelty the advent of GPS technology now occasions a heretofore unknown type of intrusion into an ordinarily and hitherto “private enclave.” The dart consists of miniaturized GPS receiver, radio transmitter, and battery embedded in a sticky compound material. When fired at a vehicle the compound adheres to the target and permits a remote real-time tracking of the target from police headquarters. GPS darts are used in exigent circumstances and for only as long as it takes to interdict a subject driver without having to engage in a high speed chase on a public way.
When courts consider conduct by private citizens, several states have criminalized the surreptitious used of devices for non-consensual tracking. In one Case a husband placed a GPS device in his wife’s car to track and record the location of the device. To retrieve the recorded information, stored in a chip in the device, he then uploaded it to his home computer, burnt his wife’s clothing and harassed her by stalking and was given concurrent four year intensive terms of supervised probation. The court “perceived no significant difference between gaining this type of personal information by physically following the wife and by using a device designed to achieve the same result.”
Unfortunately, the court also held that his motive was to instill fear in his victim by demonstrating that he had the ability to know where she was and what she was doing at any time which was accomplished.” This, he was found guilty of stalking since under state law he was “placed under surveillance” in a manner that caused a reasonable person to suffer serious emotional distress.
Questions remain unanswered. How should the Fourth Amendment apply our new technical world, one in which every few months, technology advances before our very eyes? Stay tuned for future court decisions.
565 U.S. 400 (2012).
 389 U.S. 347 (1967).
 533 U.S. 271 (2001).
 647 F.3d 216 (5th Cir. 2011).