Monday, January 30, 2012

Supreme Court: Right on GPS Surveillance--But BEWARE! (part 1)

(Back from end of semester + winter break + Arizona + 
beginning of new semester + other excuses for the respite.)

Yes, it's a search!

Electronically monitoring someone's movements by means of a tracking device, secretly attached to his car, is a search. That's what the Supreme Court ruled last week.

It means that government must get a warrant before it attaches a GPS (global positioning system) device to someone's car, without his consent, and uses that device to obtain information about his coming and going and stopping and visiting, etc. If the government does not first get a warrant--i.e., authorization from a judge based on some good reason for conducting that search--then the search is illegal. As a result, any evidence obtained in that search will be largely unusable by the government in a criminal trial.

New York State's highest court, the Court of Appeals, had reached the same decision a few years ago. As has happened many times in the New York Court's history, the Supreme Court has followed suit.

The New York Court of Appeals case was People v Weaver (2009). That Court, in an opinion by New York's Chief Judge, Jonathan Lippman, ruled that the state constitution's protection against unreasonable searches was violated when the police conducted a surreptitious GPS surveillance, over the course of several weeks, without obtaining a warrant. In short, GPS surveillance IS a search, so the state constitution requires a warrant. [See the discussion in New York Court Watcher at the time: Court of Appeals: 4-3 Majority Holds GPS Surveillance Requires Warrant Supported By Probable Cause, May 12, 2009.]

The Supreme Court last Monday, in U.S. v Jones, reached the same conclusion under the federal constitution. In an opinion by Justice Antonin Scalia, the Court ruled that the same kind of GPS surveillance, conducted by the police in that case, was indeed a search and, therefore, that the 4th Amendment's protection against unreasonable searches required a warrant.

But that's where the similarities between the two decisions end. That's just about the end of the agreement between Lippman's opinion for New York and Scalia's opinion for the Supreme Court. And that's why Justice Samuel Alito refused to join Scalia's opinion. That's why Alito wrote a separate concurring opinion and why three other Justices joined him instead of Scalia. Beware!

The Supreme Court's decision was widely reported to be unanimous, 9-0. Well, it was that on the bare minimum holding. Yes, surreptitious GPS surveillance over an extended period is a "search" within the meaning of the federal constitution. That, of course, is no trivial ruling. Certainly not one to be taken for granted. Not with today's Supreme Court.

As has been discussed before on New York Court Watcher, the Supreme Court's search and seizure jurisprudence over the last few decades has been nothing short of preposterous. Yes, preposterous. Think that's an exaggeration? OK. Just try these:

A search of your private property--as long as not too close to your house--is not a "search." Even if you post "No Trespassing" signs and erect a fence. (That's Oliver v U.S., 1984.)
Searching your backyard by hovering above in a helicopter. Not a "search." (Fla. v Riley, 1989.)
Searching through your garbage that you've covered in a garbage can, tied in a black garbage bag, and put at the end of your driveway. Not a "search." (Cal. v Greenwood, 1988.)
Searching your car, your belongings, and probably even what you're wearing by using a sniffing K-9 dog. Not a "search." (Ill. v Caballes, 2005.)
Electronically listening to your private conversations by means of a police informant who's been wired. Not a "search." (U.S. v White, 1971.)
Tracking your movements by means of a beeper that happened to be attached to your car before you owned it. Not a "search." (U.S. v Knotts, 1983; U.S. v Karo, 1984.)
And on and on.

And because none of these are a "search," none of these require a warrant, or probable cause, or reasonable suspicion, or any justification or authorization at all.
[For a previous discussion of this nonsense, see Court of Appeals: The First Big Test for the Lippman Court -- Is a Search a Search? Or the Supreme Court's Nonsense?, March 24, 2009.]

To be sure, there is a reason for this nonsense. The majority of the Court in all these "not-a-search" cases simply didn't want to exclude the evidence--i.e., throw it out. They wanted to allow the prosecution to use the evidence. Or they wanted to uphold a conviction already obtained with such evidence.

As every lawyer and many non-lawyers know, when the government engages in an unconstitutional search, the evidence obtained cannot be used by the prosecution. There are some clever ways to avoid that result. One way is for the Court to rule that the search--conducted without a warrant or without legal justification--is not really a "search" at all. Clever Justices can usually come up with some reason to support such a seemingly ridiculous ruling. And, as a result, they can approve the prosecution's use of the evidence. And they can uphold the conviction.

The point in all the foregoing discussion? Last week's decision was hardly a sure thing. The Supreme Court's ruling in the Jones case, that the GPS surveillance constituted a "search"--and, therefore, was illegal without a warrant-- was a welcome reprieve from the nonsense we've come to expect. That aspect of the decision was welcome. Very welcome, that is, to anyone who takes the constitutional protection of personal privacy seriously.

BUT... Yes, BUT!

A unanimous, 9-0 ruling, that electronic monitoring of a person's movements does constitute a search and does require a warrant, just seemed too good to be true. Too good in light of all the previous "not-a-search" decisions. Too good for a Court that has seemed more than willing to sacrifice constitutional privacy protection in order to aid criminal prosecution. And, in fact, it was too good to be true.

In its most significant aspect, the Court's ruling was 5-4. The Court was deeply divided on the reasoning used to decide that GPS surveillance is a search. It was deeply divided on the rule applied by Scalia.

Justice Alito's concurring opinion, which was joined by Justices Ginsburg, Breyer, and Kagan, flatly rejected--no, condemned--the reasoning in Justice Scalia's opinion for the Court. Indeed, the rule applied by Scalia for the majority is just as troubling as the ultimate ruling in the case is welcome.

That rule? The GPS surveillance was a "search" because the attachment of the device to the car was a physical trespass on the owner's personal property. Not because electronic monitoring of a person's movement is an invasion of that person's constitutionally protected privacy, especially when conducted over an extended period of time. That protected-privacy reasoning is what was applied by Chief Judge Lippman in his opinion for the New York Court in Weaver, and it's the one vigorously argued for by Alito in his concurring opinion in Jones.

But no. According to Scalia's majority opinion, the GPS surveillance in Jones was a "search" because of the physical attachment of the device.

As Alito emphatically warned, technological advances hardly require any physical attachment or intrusion or other trespass. A rule in which a "search" is defined in terms of any physical requirement is both, 1) contrary to the Court's long established privacy landmarks, and 2) dangerously unprotective of privacy against technological invasions that entail no physical trespass at all.

In the next post, we'll continue with the dueling Scalia and Alito opinions, as well as with the extraordinary stakes for search and seizure law and for constitutionally protected personal privacy.