Analysis

Midway through a federal government lawyer’s plea Tuesday for unrestricted power for police to use new GPS technology to track cars and trucks on public roads, Chief Justice John G. Roberts, Jr., sketched out just how the Court may well restrict the practice. Despite an unqualified prior statement by the Court that one moving about in public has absolutely no right to expect privacy, the Chief Justice said that such a right might exist, after all, and it could trump the fact that the movement was in public. If the Court can find a way to say just that, police almost certainly would have to get a warrant before using GPS to monitor where suspects go.

The argument in the much-anticipated case of U.S. v. Jones (docket 10-1259) left a solid impression: the Court, though it is unsure just how much privacy remains in the new digital world, does know just enough about the GPS device to see in it a considerable threat to people’s right to be let alone. The occasional suggestion during the argument by Justice Antonin Scalia, that state legislatures can deal adequately with such a threat, did not appear to be anywhere close to what the majority was thinking. He belittled the idea that a “scary” police tactic could be a constitutional problem, but most of his colleagues fretted that it might well be.

In this case, the latest in a continuing series in which the Court examines potential constitutional limits on police use of new technology, the federal government is relying very heavily upon the fact that the GPS technology it wants to use is carried out only when the cars or trucks to which such a device is attached are going from place to place on public streets or highways. That reliance is keyed to a flat statement the Supreme Court made in U.S. v. Knotts, a 1983 case involving police tracking of a “beeper” hidden inside a portable container: “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

Deputy U.S. Solicitor General Michael R. Dreeben (a deeply seasoned advocate making his 80th appearance before the Court) knows a precedent when he has one so obviously at hand. He left no doubt, from the opening seconds of his argument, that that statement and the Knotts precedent are crucial if police are going to be allowed to use GPS tracking without having to get a court-approved warrant. But, just as quickly, the Chief Justice began to suggest that maybe, as technology goes, Knotts was a dated precedent. “That was 30 years ago,” Roberts said. “The technology is very different and you get a lot more information from the GPS surveillance than you do from following the beeper.”

From then on, the burden of justification for warrantless use of a GPS device hung over Dreeben’s argument. As the Justices allowed their imaginations to run, over ever-changing technology that may allow the police to dig deeper and deeper into Americans’ private lives, a way to get around the Knotts statement appeared to be the one real challenge the Court would face as it moved toward a final ruling. And that is the challenge that the Chief Justice seemed to have addressed in suggesting that the fact that movements are in public may not necessarily make them fair game to intrusive monitoring by the police.

Here is how the Chief Justice put it to Dreeben: “I give you that, that it’s in public. Does the reasonable expectation of privacy trump that fact?…Is it simply the reasonable expectation of privacy regardless of the fact that it takes place in public?” Dreeben’s answer turned back to the Knotts precedent, declaring that “surveillance of a vehicle traveling on the public roadways” does not implicate privacy at all.

Roberts, however, did not let up. With GPS, compared to other forms of surveillance, the Chief Justice commented, the police “just sit back in the station and they push a button whenever they want to find out where the car is. They look at data from a month and find out everywhere it’s been in the past month. That seems to me dramatically different.” Dreeben, of course, would make repeated efforts to suggest that GPS tracking was not all that intrusive, and did not actually pick up very much information. “It doesn’t expose anything…that isn’t already exposed to public view for anyone who wanted to watch.” But no one on the bench seemed convinced of that.

Dreeben’s one potential ally on the Court appeared, at least some of the time, to be Justice Scalia. He even told the government lawyer that he thought the Court was wrong in setting up the “expectation of privacy” as the proper standard under the Fourth Amendment. But, overall, even Scalia’s vote did not seem anywhere near a sure thing for warrantless GPS tracking. He said the privacy standard that now controls is not going to be overruled, and he added that the standard was meant to provide added protection for privacy, and now Dreeben was using it to narrow privacy.

Some of the most telling indications of the Court’s leaning came as the Justices put forth hypothetical future situations: for example, Kennedy wondering if the FBI could simply put a tracking device on an individual’s overcoat, on the premise that it would be worn out in public, and the Chief Justice asked if the government would have power to put a GPS device on the cars of the Justices themselves and monitor where they drove around.

Scalia, along with some of the Justices, also appeared to be troubled about the constitutional implications of attaching a GPS device to a private car without a warrant and without the owner’s consent. But Justice Samuel A. Alito, Jr., said that issue only provided a narrow way to decide the case. “The heart of the problem,” Alito said, is rather that computers have made it possible to intrude very far into private matters, so the privacy that people used to be able to count upon because the government did not have the resources to monitor the people so closely was now more threatened.

Justice Stephen G. Breyer told the government lawyer that, “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen of the United States….What happened in the past [with traditional surveillance] is memories are fallible, computers aren’t….So, if you win, you suddenly produce what sounds like 1984” — or so, Breyer said, the other side was arguing. Dreeben tried to counter that concern by saying that the same argument had been made to the Court in the Knotts case. That did not seem enough of a response.

Harkening back to the origins of the Constitution’s Fourth Amendment, Justice Sonia Sotomayor said that what the Founders were concerned about were “general warrants,” permitting police to “indiscriminately investigate just on the basis of suspicion,” and added that what Dreeben was proposing did not seem to be different.

Stephen C. Leckar, the Washington, D.C., lawyer defending the suspected drug dealer who was the target of the GPS tracking at issue in the case, might well have rested his case without making an argument, considering the mood that had set in by the time he rose. But he made what sounded like a tactical error, by putting his initial focus not on the intrusiveness of the monitoring, but on the initial installation of the device of Antoine Jones’s private Jeep Cherokee.

That caused him to get bogged down, at least early in his argument, on whether the police had engaged in a “trespass” simply by putting the device on the vehicle in the first place. Most of the members of the Court were not notably impressed with seeing the case through that perspective. Justice Elena Kagan came close to undermining that argument completely, when she suggested that it would amount to a trespass even if a non-working device were installed on a private car. That, she said, is not the constitutional problem — an invitation to Leckar to get back to what was bothering the Justices: the scope of the monitoring, and what it told police about private life. Justice Breyer also suggested that the lawyer could argue trespass all he wanted, saying “it’s your hour,” but added that the actual issue was the “reasonableness” of the tracking.

In time, Leckar warmed to that part of his argument, and did his best to suggest that the new technology portended an Orwellian era in Americans’ lives. What has been taken from Antoine Jones, the lawyer would say, was “the data” about his movements, and that is what he had not chosen to expose to the police. Perhaps his strongest point came when, in an exchange with Justice Scalia, when he suggested that what a GPS device actually was, in operation, was “a complete robotic substitute” for a more limited human police surveillance. It captured in a phrase what the Court was worried over.

The case is expected to be decided sometime next year.

Recommended Citation: Lyle Denniston, Argument recap: For GPS, get a warrant, SCOTUSblog (Nov. 8, 2011, 2:12 PM), https://www.scotusblog.com/2011/11/argument-recap-for-gps-get-a-warrant/