Unanimous Supreme Court: Get a warrant before installing GPS tracking device

“What we apply is 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,” Scalia wrote.

“The concurrence [by Alito] does not share that belief. It would apply exclusively [the] reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed,” he said.

Scalia said under his approach, Fourth Amendment rights would be protected under both the private-property and the reasonable-expectation rationales.

The high court appeal stems from the investigation of nightclub owner and suspected drug trafficker Antoine Jones in Washington, D.C., and Maryland.

Police and federal agents suspected Mr. Jones was involved in selling significant quantities of cocaine. They maintained surveillance of Jones and his nightclub. They installed a video camera near the club and tapped his cell phone.

Investigators suspected Jones maintained a stash house where he kept his drugs. In September 2005, they obtained court-authorization to place a GPS unit on Jones’s car.

The warrant required that the device be installed within 10 days of the judge’s approval. It also required that the device be installed in Washington. For reasons that are unexplained, police did not install the device until eleven days after the authorization and they did it while the car was in Maryland.

By violating the terms set by the judge, the warrant was no longer valid.

Nonetheless, investigators used the device to track the vehicle’s movements for a month. The assembled data revealed patterns in Jones’s daily routine, and regular visits to a particular house in Fort Washington, Maryland.

After agents overheard Jones discussing a possible large cocaine shipment, they used the GPS data to identify the suspected stash house. A raid on that location recovered 97 kilograms of cocaine, nearly a kilo of crack cocaine, and $850,000 in cash.

At trial, Jones was convicted of running a drug trafficking conspiracy. He was sentenced to life in prison.

But the case wasn’t over. His lawyer appealed, arguing that the investigators violated Jones’s Fourth Amendment rights by conducting the GPS surveillance without a valid warrant.

Lawyers for the government justified the warrantless use of  the GPS tracking device by comparing it to less sophisticated beeper technology that allowed agents to follow a suspect package by using a concealed radio transmitter.

In 1983, the Supreme Court ruled that agents did not have to obtain a warrant before installing and using the transmitter to track a package. The court said there was no reasonable expectation of privacy in the public movement of a package from one location to another.

The beeper technology required agents to physically follow the package and to remain close enough to it to receive the transmitted signal. In contrast, the GPS tracker requires no real time monitoring by any human agent. The device automatically transmits its location to a computer database.

The appeals court in the Jones case ruled that a radio transmitter is different than a GPS tracking device. The GPS device allowed agents to observe Jones’s movements around the clock without any physical presence or surveillance by a human agent.

The appeals court said GPS technology enables the government to discover substantial private details of a person’s life from his or her movements over time.

“A person who knows all of another’s travels can deduce whether he is a weekly church-goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups – and not just one such fact about a person but all such facts,” the appeals court said.

In upholding the appeals court, Justice Scalia said the high court’s decision did not clash with the earlier decision in the beeper case. He said the beeper had been physically installed in a package with the knowledge of the owner of the package and, thus, no warrant was necessary to insert the device and track it to its destination.

In contrast, Jones was in possession of his car at all times when the GPS device was physically installed. That intrusion against the owner, Scalia said, was unreasonable without a warrant.

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