Search and Seizure

  • January 24, 2012
    Guest Post

    By Micah W.J. Smith, an associate at O’Melveny and Myers, and Babak Siavoshy, a teaching fellow at UC Berkeley’s Samuelson Law, Technology and Public Policy Clinic. Siavoshy was part of the legal team that represented Antoine Jones while an associate at O’Melveny and Myers, and has not worked on the case in his capacity at UC Berkeley. 


    In June of last year, Chief Judge Alex Kozinski and one of his law clerks wrote a eulogy for the Fourth Amendment, in which they mournfully concluded that “[w]ith so little left private, the Fourth Amendment is all but obsolete.” With the benefit of hindsight, it seems the eulogy may have been premature. On Monday, the Supreme Court handed down its decision in United States v. Jones, and unanimously held that the government violated Antoine Jones’s Fourth Amendment rights by surreptitiously monitoring his vehicle’s movements on public roads for four weeks. The Court’s decision is a ringing endorsement of the Fourth Amendment as a bulwark of liberty — and of the Amendment’s relevance to the surveillance technologies of the twenty-first century.

    As members of Antoine Jones’s legal team in the Supreme Court, we thought we’d offer a few thoughts on the case and its implications. Given the significant amount of commentary that is already available on the blogosphere, we won’t dwell too much on the details. (For readers interested in a more granular analysis, we recommend Tom Goldstein’s post at SCOTUSblog. Or Orin Kerr’s several posts at The Volokh Conspiracy. For readers interested in a broader overview, try Adam Liptak’s article in The New York Times.)

    Prior to Jones, there were good reasons to believe the Fourth Amendment was dying. Since the Court decided Katz v. United States over forty years ago, the Amendment’s protections were commonly understood to apply only when the government intruded on a person’s subjective expectation of privacy that society would deem reasonable. The Court had never explicitly overruled earlier cases that pinned the Fourth Amendment to founding-era property concepts, but any commentator familiar with LaFave’s authoritative treatises would have been tempted to conclude that those cases had lost their vitality, or were, in legal jargon, no longer “good law.”

    The problem was that at the same time it took on Fourth Amendment primacy, privacy was losing some of its power. This was in part because new and fast-changing technologies — think smart phones, sophisticated data mining techniques, and Google — were at once making our lives more and more convenient and less and less private. It was also perhaps because a new generation of Americans has come of age with Twitter and Facebook and YouTube, and many of us now have a much more complicated relationship with privacy. It’s a relationship that takes for granted that privacy might flourish even in public places, and even in information that has been shared with some people but not everyone. And it’s a relationship the law has been too quick to paint as a lack of any privacy at all.

  • January 23, 2012

    by Nicole Flatow

    The U.S. Supreme Court held unanimously today that police must obtain a warrant before placing a GPS tracking device on a suspect’s car.

    The ruling in U.S. v. Jones invalidates the life sentence of Antoine Jones, who was convicted of conspiracy to sell cocaine using evidence obtained over the course of a month from a GPS device attached to Jones’ Jeep Grand Cherokee.

    The justices split on the rationale, with a five-justice majority led by Antonin Scalia holding that the attachment of the GPS device to the car was a physical intrusion requiring a warrant under the Fourth Amendment.

    “That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies,” explains The New York Times’ Adam Liptak.

    The four-justice minority, led by Samuel Alito, said that the prolonged time period of the surveillance – a month long – amounted to a search and called the majority’s narrow holding “unwise.”

    Justice Sonia Sotomayor, who adopted the majority’s rationale, also wrote her own concurring opinion, in which she asserts that event non-physical intrusions might constitute warrantless searches, before concluding that the court need not answer those questions in this case.

    “She makes it clear that she sides with those that see a problem with electronic surveillance too,” writes Marcy Wheeler for emptywheel.

    Wheeler continues:

  • November 23, 2011

    by Jonathan Arogeti

    Envision OpenPlanet, a hypothetical program that could patch together every surveillance camera in the world and pair it with Facebook’s facial recognition software to create a perpetual video timeline database for each Facebook user. Would this violate the Fourth Amendment as an unreasonable search and seizure?

    This question, posed by George Washington University law professor Jeffrey Rosen, represents the crux of the issue explored at a recent forum at American University Washington College of Law titled, “Social Technology and the Threat to Privacy: How Facebook, GPS & Google Are Changing Our Lives.” Click here for video.

    Rosen links this question to the 2006 firing of Stacy Snyder, a Pennsylvania woman who was allegedly fired from her teacher training program after a MySpace picture showed her wearing a pirate hat and drinking from a plastic cup with the caption “Drunken Pirate.” Snyder sued in federal court that the picture was protected speech, but the judge disagreed because it “didn’t relate to matters of public concern.”

    Rosen points to law and technology as mechanisms for dealing with this “Stacy Snyder problem.” Europeans are experimenting with le droit a l’oubli, or the right to oblivion, as a mechanism to force online companies to protect the privacy of its customers. Technology, too, can secure customer privacy, and he points to a company that erases text messages after a specific period of time designated by the user.

  • November 8, 2011

    by Nicole Flatow

    Even Supreme Court Chief Justice John G. Roberts expressed concern about secret warrantless GPS tracking by police during oral argument in U.S. v. Jones today, SCOTUSblog’s Lyle Denniston reports.

    When Obama administration lawyer Michael R. Dreeben cited precedent upholding the use of a beeper to track a suspect in public places, Roberts responded, “That was 30 years ago. The technology is very different and you get a lot more information from the GPS surveillance than you do from following the beeper.”

    Justice Stephen Breyer warned that a win for the government in the case would allow 24-hour monitoring over the “public movement of every citizen” and Justice Ruth Bader Ginsburg worried that only a person’s home would be safe from intrusion, Reuters reports.

    In this case, federal officials placed a GPS tracking device on the bottom of Antoine Jones’ car using an invalid warrant, and tracked the car’s movements for 30 days. The GPS took snapshots of Jones’ movements every ten seconds, which were uploaded to a computer and searchable by police, explained O’Melveny & Myers Partner Walter Dellinger during the American Constitution Society Supreme Court Preview.

    The court has previously held that individuals do not have a reasonable expectation of privacy in a public thoroughfare such as a road, where someone could observe their actions. But at what point that reasoning breaks down is the question the justices considered today.

    “You may understand that your neighbor can observe you on a public street when you leave the house,” Dellinger explained during the Supreme Court Preview. “What you cannot expect is that your neighbor will attach a GPS device under your car and use a GPS device to track your every movement.”

    The lower court adopted this reasoning when it held that officials should have obtained a valid warrant, writing, “[w]hen it comes to privacy . . . the whole may be more revealing than the parts.”

    Even a government loss in this case will not preclude police use of GPS tracking, George Washington University law professor Daniel Solove points out in an ACSblog guest post.

    ”Applying the Fourth Amendment to GPS surveillance won’t mean stopping the government from engaging in it,” he writes. “It will just mean that law enforcement officials who engage in GPS surveillance will be subjected to judicial oversight and will be required to justify their need to engage in the surveillance before doing so. These requirements seem reasonable given the fact that GPS surveillance technology can track a person so pervasively.”

    Read Solove’s post here, and watch video of Dellinger’s discussion of the case below.

  • November 7, 2011
    Guest Post

    By Daniel J. Solove. Solove is the John Marshall Harlan Research Professor of Law and the George Washington University Law School. He is the author of Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011).


    The Supreme Court has long held that there is no expectation of privacy in public for the purposes of the Fourth Amendment.  Because the Fourth Amendment turns on the existence of a reasonable expectation of privacy, the Court’s logic means that the Fourth Amendment provides no protection to surveillance in public.  In United States v. Jones, the Court will confront just how far this logic can extend.  FBI agents installed a GPS tracking device on Jones’ car and monitored where he drove for a month without a warrant.  Jones challenged the warrantless GPS surveillance as a violation of the Fourth Amendment.  The D.C. Circuit agreed with Jones.  United States v. Jones, 615 F.3d 544 (D.C. Cir. 2010).  Other federal circuit courts have reached conflicting conclusions on GPS, and now the Supreme Court will resolve the conflict. 

    Will the Court revisit its view about the lack of privacy in public given the changing capabilities of technology?  Or will it follow its tortured logic to the end, and maintain its wooden and antiquated rule of no expectation of privacy in public? 

    On its face, the D.C. Circuit opinion appears to clash with the Supreme Court’s decision in United States v. Knotts, 460 U.S. 276 (1983), where the police installed a much simpler tracking device (referred to as a “beeper”) to a person’s car.  The Court concluded that the Fourth Amendment did not apply to the beeper because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”

    The D.C. Circuit distinguished Knotts because the Supreme Court noted in Knotts that the beeper surveillance was limited and explicitly noted that more pervasive surveillance might be treated differently.   In concluding that the Fourth Amendment requires a warrant to engage in extensive GPS surveillance, the D.C. Circuit noted that “[w]hen it comes to privacy . . . the whole may be more revealing than the parts.”  As the court reasoned:

    It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.

    The Supreme Court will determine if it agrees with this theory. 

    The problem with the Court’s existing view of no privacy in public is that people often do expect privacy in public.  The Court’s conception of privacy wrongly views privacy as total secrecy and fails to recognize that people often have practical obscurity in public.