Sunday, February 12, 2012

The GPS Decision--part 2: Scalia's Dangerous Nonsense & Alito's Rebuttal

The 4th Amendment does not prohibit unreasonable searches--only unreasonable searches of the few items it specifically mentions.
The 4th Amendment's fundamental concern is not even a search per se--it's concern is physical trespass.
The 4th Amendment is not even concerned with all physical trespasses--but only a physical trespass of an item it specifically mentions.
The Court's decisions protecting private activities from unreasonable searches (rather than protecting specified areas from physical trespass)--are deviations.
The Court's earlier decisions permitting warrantless wiretapping, warrantless eavesdropping, and warrantless searching of private property other than the house were correct under the 4th Amendment.
The GPS search in this case was unconstitutional, not because of its unreasonable invasion of personal privacy, but because the police "trespassorily" "encroached on a protected area."
--Justice Scalia's view of the 4th Amendment,
as expressed in his opinion for the majority in U.S. v. Jones

The 4th Amendment cannot be applied using 1791 trespass law.
The 4th Amendment must be adapted to 21st century technological surveillance.
A physical trespass is not the same as a search--nor is a physical trespass required for one.
4th Amendment doctrine must be concerned with modern, electronic surveillance, whether trespassory or not.
4th Amendment decisions that focused on physical trespass of a specified item have been repudiated.
The prolonged GPS search in this case was unconstitutional because it was an unjustified intrusion on privacy that reasonable people expect.
--Justice Alito's view of the 4th Amendment,
as expressed in his separate concurring opinion

Before going further, let's look at a few of the Court's past decisions that Scalia relied upon and explained with approval. Some, including me, may find this alarming.

Olmstead v. U.S. (1928)--warrantless wiretapping of phone conversations was fine under the 4th Amendment (i.e., was not a "search"). Why? Because the telephone wires were outside, and the tapping did not require entry into the person's house or office.
Hester v. U.S. (1924)--warrantless searching of someone's private property was fine. Why? Because the 4th Amendmend mentions "houses" but not the land ("open field") beyond.
U.S. v. Knotts (1983) & U.S. v. Karo (1984)--warrantless surveillance of a person's whereabouts by means of a beeper (i.e., it was placed inside a container on a vehicle he drove) was fine under the 4th Amendment. Why? Because (i.e., the important point according to Scalia), in each case, the driver didn't own the container when the beeper was installed.

On the other hand, Alito relied on sharply contrasting 4th Amendment jurisprudence.

Olmstead v. U.S. (1928)--same case as relied on by Scalia. But Alito relied on the landmark dissent in that case, by Justice Brandeis, which was later adopted by the Court.
Warrantless wiretapping is an unreasonable search. Why? It's irrelevant "where the physical connection with the telephone wires was made," and irrelevant that telephone conversations are not mentioned in the 4th Amendment. Quoting Brandeis further: the 4th Amendment's purpose is to forbid "every unjustifiable intrusion by the government upon the privacy of the individual."
Katz v. U.S. (1967)--the Court repudiated the trespass and specifically-mentioned-item approach to the 4th Amendment, and it adopted Brandeis' Olmstead dissent.
Warrantless eavesdropping on a phone conversation taking place in a phone booth is an unconstitutional search. Why? It is immaterial that there was no physical trespass on any property owned by the phone caller, and immaterial that telephone booths and phone conversations are not specifically mentioned items. The 4th Amendment does not depend on a property right in a place or thing falling within its "literal words." Instead, it is about "the privacy upon which [a person] justifiably relie[s]."

Now let's be clear. Scalia's opinion for the majority in Jones did declare that the GPS monitoring of the defendant's movements for a 4 week period was a "search" and, therefore, it was unconstitutional without a warrant. So far, so good.

But let's also be clear that, according to Scalia's majority opinion, the GPS monitoring was a "search" because the police placed a device on the defendant's car without his permission. Not because the police engaged in pervasive electronic monitoring of a person's movements!

That's what's important about the Court's decision. That's what the law is from this case. That's the precedent now. That's what is so troubling--indeed, dangerous--about Scalia's opinion for the Court. The extraordinary narrowing of the meaning of a "search." The narrowing of a "search" that must be reasonable to be valid. The narrowing of a "search" that requires a warrant.

And Scalia knew exactly what he was doing. This was not the result of some casual reference of his or of some careless choice of phrasing. No, this was deliberate. That's why he cited those above-mentioned decisions with approval. That's why he explained them the way he did. Reviewing his opinion in Jones further leaves no doubt.

Scalia's very first sentence begins with his framing of the issue to be decided by the Court: "whether the attachment of a Global Positioning System (GPS) tracking device to an individual's vehicle..." And just in case it wasn't clear what he--and the majority he wrote for--saw as the critical factor in this "search" case, he made the point repeatedly. Using several variations on the same theme.

"Installed...on the undercarriage of the Jeep." "Installation...on a target's vehicle." "Physically occupied private property." "Significance of property rights." "Common-law trespass." "Government trespass." "Physical intrusion." "Government trespassorily inserted the...device." "Trespassory searches." "Mere visual observation does not constitute a search."

Oh, and according to Scalia, the "true and ultimate expression" of constitutional search and seizure protection is a 1765 English decision, Entick v. Carrington. That case discussed trespassing on a neighbor's property.

Which leads to the other point emphasized in Scalia's majority opinion. It's not just any "attachment" or "physical intrusion" or "trespass" that makes a "search." No. Scalia makes clear: 1) that it must be a physical trespass upon an area or item specifically mentioned in the 4th Amendment, and 2) that the area or item must be owned by the person being "searched."

Otherwise, according to Scalia, "the [4th Amendment's] phrase 'in their persons, houses, papers, and effects' would have been superfluous." The 4th Amendment "embod[ies] a particular concern for...the areas it enumerates." It reflects a "principle [about] physical intrusion of a constitutionally protected area." "The 4th Amendment protects against trespassory searches only with regards to those items that it enumerates"--e.g., not outside telephone wires as in Olmstead and not land beyond the house as in Hestor. The "officers [in this GPS case] encroached on a protected area." A vehicle is a protected area only because it is "an 'effect' as the term is used in the [4th] Amendment."

And....the defendant in this case was "the exclusive driver"of the Jeep. "He at least had the property rights of a bailee." He lawfully "possessed the Jeep at the time the Government trespass[ed]." He was "on much different footing" then a non-owner [like the drivers in the beeper cases, Knotts and Karo] would have been.

Soooo, the 4th Amendment is about preventing unauthorized physical trespass upon an owner's property, and only property of the type listed.

But Alito--and the 3 Justices who joined him--protested. Much like Justice Brandeis did in 1928, in his dissent in the wiretapping case, Olmstead. "Not so quick; you're entirely wrong and heading in a dangerous direction," was the emphatic point of Alito's concurring opinion.

The 4th Amendment is not about 18th century tort law. A claim of unconstitutional search cannot be analyzed like a "1791 suit for trespass to chattels." Indeed, nothing similar to the 4 week surreptitious GPS monitoring in this case would have been possible at that time. [Scalia actually dropped a footnote to suggest the possibility of "a constable concealing himself in the target's coach."]

As Alito noted, Scalia's majority opinion "largely disregards what is really important[, i.e.,] long-term tracking." That aspect of the case is virtually ignored. Instead, Scalia's opinion "attaches great significance to something...relatively minor," i.e., "attach[ing] a small, light object that does not interfere in any way" with the driver or his car's operation. In fact, such a "technical trespass" would be treated as "so trivial" as to be largely dismissed in modern tort law.

As Alito explains, "if long-tern monitoring can be accomplished without committing a technical trespass, the Court's theory would provide no protection." And, of course, such monitoring is not difficult today.

Police monitoring someone for a lengthy period using unmarked cars. The same using helicopters. Using video cameras. Pre-installed GPS or roadside assistance devices. Phone-location-tracking services. Any electronic device attached to something owned by someone else. Or engaging in any electronic surveillance whatsoever that does not require physical contact with the person's property. Or all of that at once.

None of that is a "search" under Scalia's physical-trespass approach to the 4th Amendment. No, not a "search" regardless of how pervasive or how long the duration. No, none of that surveillance would require reasonableness or a warrant.

In fact, for that very reason, the physical-trespass approach--which had permitted warrantless wiretapping and eavesdropping in the early part of the last century--was ultimately discredited and the Court repudiated its prior decisions. Nearly half a century ago, in Katz, the Court put the physical-trespass test to rest. As Alito explained, property rights became only a single factor in determining whether a 4th Amendment "search" had taken place. The test, ever since, was whether the person had a reasonable expectation of privacy. If so, government intrusion--whether or not physical--was a "search" requiring reasonableness and a warrant.

That's the 4th Amendment that Alito would have applied. And since the long-term GPS surveillance in Jones entailed "a degree of  intrusion that a reasonable person would not have anticipated," that surveillance was a "search" mandating 4th Amendment protections. Under Alito's view of the 4th Amendment, any modern technological monitoring that similarly intrudes on legitimate privacy expectations--regardless of any physical intrusion or not--would likewise be recognized as a "search" triggering constitutional protections.

The contrast between Scalia's and Alito's approaches to the 4th Amendment, and the difference in the consequences, could hardly be greater for search and seizure rights.

Sotomayor joined Scalia's opinion to give him the bare 5 Justice majority. (So did Chief Justice Roberts and Justices Thomas and Kennedy.) BUT Sotomayor authored a separate concurring opinion which, among other things, explained her voting with Scalia. It was only because she understood his physical-trespass view of the 4th Amendment to be "an irreducible constitutional minimum."

Yes, in her view, the Katz protection of reasonable-privacy-expectations, regardless of any physical intrusion, remains the law. And she agreed with Alito (and Justices Ginsburg, Breyer, and Kagan who joined him), that  long-term GPS monitoring, such as in this case, "impinges on expectations of privacy."

So why didn't Sotomayor join Alito? Why didn't she vote with him and simply author her opinion as a concurrence to his--instead of to Scalia's? It's curious. It's certainly not clear.

What is clear, is that she could have made Alito's opinion the majority. If she had voted with him, she would not have helped Scalia revive the previously repudiated physical-trespass approach to the 4th Amendment. She would not have given Scalia's dangerous nonsense the authoritative legitimacy it now has.