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A Study in Contrasts

Sudhina Johnson didn't get very far with his argument that the placement of a GPS device on his car, and the evidence obtained by using it to track his vehicle, was a 4th Amendment violation.  Last year, in State v. Johnson, the 12th District easily shot down that argument.  The 4th Amendment is all about privacy, the court said, and here there was no indication that Johnson had "intended to preserve the undercarriage of his van [where the device was planted] as private," and one does not have a reasonable expectation of privacy in his travels on public roads.

Antoine Jones had better luck:  last August the DC Circuit, in a decision I discussed here, held that the use of the GPS to monitor his movements did constitute an unreasonable search.

Three weeks ago, the Ohio Supreme Court had oral argument in Johnson's case; on Tuesday, the US Supreme Court heard the arguments in Jones.   In Columbus (actually, the argument was held in the Highland County court in Hillsoro), it appeared that a majority of the justices bought into the "no privacy interest" reasoning.  Down in D.C., though, not so much...

A quick legal summary here.  The key case is the Supreme Court's 1983 decision in US v. Knotts, holding that the placement of a beeper in a drum of choloroform, which was then used to trace the defendant's movements from one point to another, didn't violate the 4th Amendment.  The following year, in US v. Karo, the Court found that the placement of a beeper to monitor the movement of an item within a private residence did implicate the 4th Amendment, because of the expectation of privacy within the home.  Karo, and some subsequent decisions, retained the "public/private" distinction at the heart of Knotts.  The Knotts Court, however, provided one caveat:  to the defendant's suggestion that affirmance of such a search could result in "twenty-four hour surveillance of any citizen of this country, without judicial knowledge or supervision," the court tartly replied that "if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable."

It was fairly clear that for at least three Ohio justices -- Pfeifer, Lanzinger, and McGee Brown -- that time had come today.  Three others -- Cupp, O'Donnell, and Lundberg Stratton -- gave equally clear indications that they were quite comfortable with the Knotts formulation that tracking the movements of a car over a public roadway implicates no privacy concerns.  Lundberg Stratton went so far as to second the prosecutor's suggestion that the appropriate forum for resolving this issue would be the Ohio legislature, which could pass a law addressing this.  Perhaps, although my enthusiasm for the suggestion is diminished by the realization that, on the list of the legislature's priorities, "protecting 4th Amendment rights" can be found somewhere on page 19, with the first 18 filled with various formulations of "beating up unions" and "kowtowing to business interests."  The Chief Justice was more circumspect, noting that this was different from Knotts, where the observational period had been much shorter, but otherwise didn't tip her hand as to her inclinations.

Not so for her counterpart down in DC:  five minutes into the government's argument, Chief Justice Roberts made the argument All About Us:

You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you're entitled to do that under your theory?

The attorney tried to sidestep the question by noting that there would be no constitutional problem if the FBI decided to "put its team of surveillance agents around the clock on any individual and follow that individual's movements as they went around on the public streets."  But this gave the justices an opening that Roberts had brought up early on:  it's a far different world than the one the Court confronted in Knotts.  Alito aptly summed up the issue, noting that back then

much of privacy people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information.  But with computers, it's now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets, information that was made available to the public.

Breyer jumped in and played the 1984 card, noting that a  government win would mean "there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States."  Breyer acknowledged that this might be a bit overdramatized, but Roberts again drove home the point that the government was arguing for a carte blanche:  "Your argument is, it doesn't depend how much suspicion you have, it doesn't depend on how urgent it is. Your argument is you can do it, period. You don't have to give any reason. It doesn't have to be limited in any way," a point with which the government attorney candidly, if somewhat cluelessly, agreed.

Actually, the session was essentially one big dogpile on the government lawyer.  Kennedy suggested that, under the government's reasoning, it could surreptitiously place a device in someone's coat and use that to track his movements.  Sotomayor analogized the government's position to the use of "general warrants," the main raison d'etre for the 4th Amendment.  Ginsburg told him he was fat, and Kagan opined he was ugly, too.  Well, not really, but you get the flow; even Scalia's questions weren't overtly friendly.

So what's going to happen?  The likely result in Jones was also raised by Roberts:  "Isn't the normal way in these situations that we draw these limits how intrusive the search can be, how long it can be, is by having a magistrate spell it out in a warrant?"  Interestingly, the police had gotten a warrant in Jones.  They just hadn't complied with it:  it was for 10 days, they used it for 11, it was for Maryland, they went into Virginia...

As for Johnson, well, my guess is that the court's going to hold the case to see what the Supreme Court does in Jones, and then follow that.  Or maybe let the Ohio legislature tackle the issue...

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