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Chemerinsky: Keeping Up with the Joneses—How Far Does the ‘Reasonable Expectation of Privacy’ Go?

Posted Nov 1, 2011 8:55 AM CDT
By Erwin Chemerinsky

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Erwin Chemerinsky

One of the most difficult, and potentially most important cases of the U.S. Supreme Court term will be argued on Nov. 8. United States v. Jones involves the question of whether it is a search or seizure within the meaning of the Fourth Amendment when the police plant a GPS device on a person’s vehicle and monitor it for 24 hours a day, for 28 days.

Since Katz v. United States, decided in 1967, the Supreme Court has defined the protections of the Fourth Amendment in terms of the “reasonable expectation of privacy.” But how does that apply in this situation?

On the one hand, the court has long held that people have no expectation of privacy for their public activities. The police could have followed Jones’ car on public streets for a month, perhaps by using undercover officers, and no one would have contended that there was a search or seizure that required a warrant.

On the other hand, people have the expectation that police are not planting a device on their car to monitor their every move. As technology develops, police are gaining more ability to follow anyone at any time. A great deal of personal information can be learned by following someone for weeks.

Yet, said Chief Judge Alex Kozinski of the 9th U.S. Circuit Court of Appeals, “There is something creepy and un-American about such clandestine and underhanded behavior.” Kozinski, dissenting from denial of en banc rehearing in the 2010 case, United States v. Pineda-Moreno, added, “To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu.”

This case involves Antoine Jones, whom the police suspected of cocaine trafficking. The investigation included visual surveillance of Jones and the area around his nightclub, the installation of a fixed camera near the nightclub, a pen register that showed phone numbers of people called or receiving calls from Jones’ phone, and a wiretap for Jones’ cellular phone.

Additionally, the police obtained a warrant authorizing them to install and monitor covertly a GPS tracking device on a Jeep Grand Cherokee registered to Jones’ wife, but used extensively by Jones. The warrant required that the device be installed within a 10-day period and only in the District of Columbia.

But police installed it on the 11th day while the car was in Maryland. Both sides agreed that this was a warrantless planting. This could turn out to be very relevant in the Supreme Court’s decision: it shows that the police can easily get warrants for the use of such tracking devices.

The police used the device for four weeks. Based on all of the information gained, the police obtained and executed a search warrant; cash and drugs were found.

After Jones was indicted, he moved to suppress the information gained from the GPS tracking device. The district court held that the information gained from the movement of the car on public roads was admissible, but that any data gained from the car while it was parked in Jones’ garage at home had to be suppressed.

Jones was tried and acquitted on multiple charges, but the jury could not reach a verdict on the conspiracy charge and a mistrial was declared. Jones was then retried for conspiracy to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base. The GPS logs were important at trial because they linked Jones to the stash house.

This time, the jury convicted Jones. The district court sentenced him to life imprisonment and ordered him to forfeit $1 million in drug proceeds.

The U.S. Court of Appeals for the District of Columbia Circuit found that the warrantless following of Jones via the GPS device was a search within the meaning of the Fourth Amendment. The appeals court denied en banc review over the dissent of four justices.

The issue before the Supreme Court lacks a precedent exactly on point. In United States v. Knotts, decided in 1983, the court held that it was not a search within the meaning of the Fourth Amendment when the police planted a beeper in a can of chloroform, a chemical precursor to manufacture illicit drugs. The can was then placed in the defendant’s vehicle and used to monitor the car’s movements on public roads.

In language the government quotes, the Supreme Court said that the monitoring was not a search because a person “traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”

But Knotts involved very different technology—the beeper merely let the police know if the can they were following was closer or farther away. More important, the beeper was placed in the can with the consent of the chemical company that made the chloroform. The owner of the vehicle then placed the can in his car.

Yet so far the court has had no occasion to consider the kind of technology involved in Jones, which can monitor a person’s every movement over a long period of time.

Ultimately, what makes Jones difficult relates directly to the Fourth Amendment test that the court has used for almost a half century. One key problem with the “reasonable expectation of privacy” test is that the government seemingly can extinguish it just by telling people not to expect any privacy in a particular area.

Moreover, focusing on the reasonable expectation of privacy confuses a description of what people think it should be with a conclusion about what the Fourth Amendment should be deemed to protect. Whether people actually have an expectation of privacy in a particular instance is an empirical issue that can be measured.

But that is never how courts decide whether a reasonable expectation of privacy exists. Courts make an intuitive sense about whether people expect privacy in particular instances. But the question should not be about what people actually expect, but what they should be entitled to expect under the Fourth Amendment. The Katz test does not focus on that distinction.

Technology, which makes it easier to monitor people and their activities, nevertheless makes the problem more intractable. In City of Ontario v. Quon, decided in 2010, the court faced the issue of the reasonable expectation of privacy with new technology, but refused to address it.

That case involved whether a police officer had a reasonable expectation of privacy in messages sent by a text-pager that had been issued on the job. Justice Anthony M. Kennedy wrote that “[t]he judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear.” The court assumed that there was a reasonable expectation of privacy, but concluded that the search was reasonable and did not violate the Fourth Amendment.

Jones should force the court to confront how the Fourth Amendment applies to new technology like GPS devices. The “reasonable expectation of privacy” cannot answer that question. Rather, the court must focus on whether such monitoring as occurred to Antoine Jones is so intrusive as to constitute a search within the meaning of the Fourth Amendment. The court’s answer could have enormous importance, not just in the jurisprudence of the Fourth Amendment, but in the role of the government in all of our lives.

Erwin Chemerinsky, Dean and Distinguished Professor of Law at the University of California, Irvine School of Law, is one of the nation’s top experts in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He is the author of seven books, the latest being The Conservative Assault on the Constitution (Simon & Schuster, 2010). His casebook, Constitutional Law, is one of the most widely read law textbooks in the country. Chemerinsky has also written nearly 200 law review articles in journals such as the Harvard Law Review, Michigan Law Review, Northwestern Law Review, University of Pennsylvania Law Review, Stanford Law Review and Yale Law Journal. He frequently argues appellate cases, including matters before the U.S. Supreme Court and the U.S. Court of Appeal, and regularly serves as a commentator on legal issues for national and local media. He holds a J.D. from Harvard Law School and a B.S. from Northwestern University.

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