The Resurrection of the “Trespass” Element of Fourth Amendment Law

Posted on Categories Constitutional Law, Criminal Law & Process, Public, U.S. Supreme Court

Recently, in United States v. Jones, the Supreme Court ruled that the attaching of a GPS tracking device to a suspect’s car without his knowledge and monitoring of the vehicle’s movements violated the suspect’s Fourth Amendment rights against unreasonable search and seizure.  See generally 132 S.Ct. 945 (2012).  In so doing, the Court resurrected an idea relating to Fourth Amendment law that had been dormant for almost 50 years – the idea of common-law trespass as a test for violations of the amendment.

Specifically, police officers obtained a warrant to put the tracking device on a car registered to Jones’ wife.  Jones, 132 S.Ct. at 948.  Officers then placed the GPS tracker on the undercarriage of the car while it was parked in a public parking lot.  Id.  The officers then monitored the car’s movements for 28 days.  Id.  Eventually, the Government indicted Jones on charges of (among other things) conspiracy to distribute and possess with intent to distribute cocaine.  Id.  Jones moved to suppress the evidence from the GPS device.  Id.  The district court held that information obtained while the vehicle was on public roads was acceptable, but information while the vehicle was in a private garage must be excluded, citing United States v. KnottsId.  There, the Court stated that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”  United States v. Knotts, 460 U.S. 276, 281 (1983).  Jones was found guilty and sentenced to life in prison.  Jones, 132 S.Ct. at 949.  The Court of Appeals, however, reversed, finding the GPS evidence violated the Fourth Amendment, and was therefore improperly admitted.  Id.

The Court acknowledged that in Katz v. United States it said that “the constitution protects people, not places” and that an individual’s rights are violated when the government violates a person’s “reasonable expectation of privacy.”  Jones, 132 S.Ct. at 950, citing Katz v. United States, 389 U.S. 347, 351 and 360.  Despite this, the Court stated that it need not decide if Jones had a “reasonable expectation of privacy,” because

[a]t bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”  Kyllo v. United States, 533 U.S. 27, 34 (2001).  As explained, 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.

Jones, 132 S.Ct. at 950.  Quite simply, the Court decided that the officers encroached on a “protected area” when they attached the GPS device to the vehicle, and as such they violated Jones’ right against government trespass on his “effects.”  Id. at 952.  Finally, the Court distinguished Knotts and United States v. Karo, two cases where electronic monitoring of moving objects was upheld, by pointing out that in both of those cases, the monitors were placed in an object belonging to a willing third party, and then given to the defendant (and ultimate target).  Id. at 951-52.

Overall, I was not convinced by this opinion.  I believe the Court is simply making the law in the area of Fourth Amendment searches and seizures unnecessarily confusing, by raising an issue that nobody had thought about for half a century.  In that regard, I agree with the concurring opinion, which would apply the Katz “reasonable expectation of privacy” test.  I believe the test has developed, with sufficient case law surrounding it, to a point where it is clear and administrable.

It seems odd that while surveilling the vehicle on public roads would be legal, placing a GPS device on the outside of a car, while it is in a public parking lot (where anyone could access it) to save time and resources, and not gain any information that would not be gained from surveillance would be deemed unconstitutional because of an old idea of trespass as defining Fourth Amendment violations.

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