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A preview of Jones

Yesterday we talked about the 8th District's decision in State v. Jefferson, in which the defendant had been convicted of several burglaries on the basis of evidence that had been acquired after the police planted a GPS device on his car and tracked his movements.  The court held that Jeffersons's attorney had rendered ineffective assistance by failing to file a motion to suppress the search.  As I mentioned, the issue is before the US Supreme Court in US v. Jones, scheduled to be argued around Thanksgiving, so I figured it was a good time to take a look at that case.

I'd talked about the DC Circuit's decision in Jones a year ago, in this post.  Basically, the argument that such devices don't implicate 4th Amendment concerns is that you don't have a privacy interest in your travels on a public roadway:  you're willingly exposing those travels to public observation.  The counterargument in Jones, largely adopted by the 8th in Jefferson, is that surveillance through a GPS device is qualitatively different because it allows all of your movements to be tracked over a substantial period of time, thus providing far more information than one could reasonably expect could be obtained simply by being observed by passesrsby.  There's a huge difference between some guy happening to follow you for a couple of blocks on your way to the grocery store, and the police monitoring your every movement by car over a four-month period.  (That's what happened in US v. Pineda-Moreno, the 9th Circuit case I discussed in the same post mentioned above, which upheld the use of the device.) 

The case, of course, turns on the expectation of privacy, and part of the problem here is the subjectivity of that test.  Back in 2007, Prof. Orin Kerr wrote an excellent law review article on the four different models the courts have used in interpreting the expectations of privacy in 4th Amendment cases.  The government's brief in Jones, for example, primarily argues what Kerr would call the "private facts" model:  whether the expectation of privacy is reasonable is based on what information is obtained, regardless of how it's obtained.  Again, though, this argument seems to depend upon a deconstructionist interpretation of what the police did:  since the defendant had no reasonable expectation of privacy in a particular trip, he had no reasonable expectation privacy in all of them.

The government is on a bit firmer footing with what Kerr would call the "policy model":  the determination of whether the expecation of privacy is reasonable depends upon whether it is desirable to have that outcome as a matter of policy.  The DC Circuit had relied primarily on the "mosaic" theory, that when all the information concerning a person's movements is put together, it reveals far more than the disconnected observations of his individual movements over the same time.  While the prospect of having the government monitor someone's every movement in public over a month's period of time certainly raises the specter of an Orwellian dystopia, the DC Circuit's argument also reveals the problems with subjective interpretations of privacy expectations.  What if the monitoring takes place only over a four-day period, as in Jefferson?  Police routinely conduct stake-outs.  You could make the same argument about those:  while it would be unreasonable for me not to expect people to walk past my house and look at it, is it reasonable to expect that someone will be watching my house 24 hours a day for a week or so?  I don't have a reasonable expectation of privacy in the garbage I leave on the curb; does that mean I should anticipate that someone will come and rummage through it, looking for evidence of drugs?  Your cellphone probably contains a GPS device, and, as this article indicates, it's common practice for police to get records from cellphone companies containing that information without a warrant.  Is that unreasonable?  The government in Jones contends that an adverse ruling will call into question a number of routine police practices.

From that perspective, the amicus brief of the Gun Owners of America and various other conservative legal groups proves interesting.  For most of our history, the courts interpreted the 4th Amendment on the basis of property interests.  The government could not seize items, even with a warrant, unless it could show a superior property right to them.  Thus, contraband, or instrumentalities and fruits of a crime, could be seized, but seizure of "mere evidence" -- a man's private papers, in order to show a violation of income tax laws, say -- was not permitted.  In the 1960's, the Supreme Court abandoned this in favor of the "expectation of privacy" test.  The amicus brief argues that the DC Circuit came to the right conclusion for the wrong reason:  the privacy test should be abandoned in favor of restoring the property rights test, in which case the government's placement of the GPS, and the acquisition of information from it, is plainly unconstitutional.  The argument has some merit, but the property rights test has its own limitations.  When the Court first confronted the issue of wiretapping in 1928, it held that there was no 4th Amendment violation because the defendant had no property interest in telephone lines belonging to the telephone company.  It wasn't until 60 years later that the Court struck down warrantless wiretapping, on the basis that one had a reasonable expection that his phone conversations would remain private.

It's unlikely that the Court is going to overrule close to a half century of 4th Amendment law, but the property rights concept could have an impact.  The 9th Circuit case upholding the use of the GPS was also appealed to the Supreme Court, but the Court hasn't decided whether to accept the petition.  (A decision will probably be deferred until Jones is ruled upon.)  That case, though, raised a question which the petition in Jones didn't:  whether a warrant was needed for the placement of the GPS device on the car.  That was due to the factual dissimilarities:  in Pineda-Moreno, the police had actually snuck onto the defendant's driveway in the middle of the night and planted the device, while in Jones the device had been planted while the vehicle was in a public parking lot. 

Surprisingly, when it granted cert in Jones, the Court also ordered the parties to brief the issue of whether a warrant was needed to attach the device.  That's especially interesting, because most everybody assumed that the problem in Pineda-Moreno was going onto the defendant's property; the attachment to the vehicle itself wasn't deemed problematic, on the theory that one had no reasonable expectation of privacy in the exterior of a car.  You might reach a different result if you approach the issue under a property rights analysis.

And it may well be that that's how a majority can be cobbled together to sustain the DC Circuit's ruling.  Scalia and Thomas would be much more accepting of an argument based on property rights than one predicated on an inchoate "right of privacy," while the four liberals -- such as they are -- would be open to either argument.  We'll know more after the oral argument in November.

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