SCOTUS Unanimous: Police Need Warrants To Use GPS

Privacy rights scored a win at the Supreme Court Monday, but it’s not clear how big a win. In a unanimous ruling with a handful of concurring opinions, the Supreme Court ruled that police  must obtain a search warrant before using GPS technology to track criminal suspects. But the Court failed to agree on much else in terms of electronic surveillance and privacy rights in the digital age, meaning this is an issue we’ll be coming back to.

In US v. Jones, a GPS device helped authorities link a Washington, D.C. nightclub owner to a suburban house he was using to stash money and drugs. That evidence led to a conviction and life in prison sentence before an appeals court overturned the conviction on the grounds that authorities needed to get a warrant before attaching the GPS device. The Supreme Court agreed.

Justice Scalia wrote the majority opinion, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor. Justice Sotomayor wrote one of the concurring opinions that agreed in outcome, though for different reasons, then the majority opinion. Justice Samuel Alito also wrote a concurring opinion in which he said the court should have gone further and dealt with GPS tracking of wireless devices like cell phones. Justice Alito was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elana Kagan.

Here was the common ground: the justices agreed that the government needs to get a warrant before physically attaching an electronic monitor to a car or a truck. But there was little agreement as to how long such a device could be used, what suspected crimes should permit its use, meaning the contours of individual privacy rights in these cases remain unclear.

If we take the opinions together we get a nice panorama of possible privacy rights and in that long-view are some promises that the 4th Amendment is not dead. Justice Sotomayor’s expansive argument in support of protecting individuals from government electronic monitoring in almost all instances demonstrates that even former prosecutors understand the abusive potential in electronic surveillance almost always outweighs cutting constitutional corners.

Normally I admire Justice Scalia’s absolutism with regard to the 4th Amendment, but here I have to say I am pleasantly surprised to Scalia him presenting the most limited argument against electronic monitoring. That’s because it suggests the rest of the Court, or at least the concurring opinions of which there were a majority of votes–Alito, Ginsburg, Breyer, Kagan and Sotomayor- have a more expansive understanding of individual privacy and the limits of governmental electronic surveillance. And that’s a good thing.

On a practical level this bodes well for privacy advocates as we will likely see host of litigation surrounding the contours of the Jones decision. But this was the Court’s first look at the Fourth Amendment implications of police use of GPS devices, despite their increased use among law enforcement and it chose not to set any bright line rules other than to tell the police that a warrant should be issued for GPS monitoring.

In the meantime, I think it’s best to view this decision more as a common-sense acknowledgement that technology has changed the way in which the government can conduct surveillance, which means we need jurisprudence that both understands technology and the nebulous nature of constitutional privacy analysis. The Court inched closer to giving us that today.

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Photo from steakpinball via flickr.

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David Anderson
David Anderson3 years ago

Cathryn C.
7:33am PST on Jan 24, 2012
Good ruling, but frankly we NEED more technologically savvy people sitting in the Supreme Courts and frankly Congress. Technology is evolving too fast for those who are still having trouble using a GPS, Computer or Cell phone to make critical decisions on. Time for someone to be appointed to the bench who is under 60.

I would have to disagree. This is a matter of principle, not technology, which does not change regardless of the instruments used, much in the same way that murder as a principle does not change whether the apex weapon is a rock, club, spear, sword, bow, crossbow, flintlock, modern firearm, or the energy weapons of the future.

Mike Barnes
Michael Barnes3 years ago

First - Tamara is an idiot, and obviously proud of it.
That said, considering the caliber of the Roberts Court, this comes as a welcome surprise. I can only hope that Anonymous pays a visit to that thing in Utah.

Linda T.
Linda T.3 years ago

Good news. Lets hope that other cases are brought forth involving cell phones, our personal data on our computers, soon so we can see what rights we have left.

Marianne C.
Marianne C.3 years ago


It's about TIME they did something right.

Dr Clue
Dr Clue3 years ago

[Department of Homeland Security's surveillance program. The documents include contracts and statements of work with General Dynamics for 24/7 media and social network monitoring and periodic reports to DHS. The documents reveal that the agency is tracking media stories that "reflect adversely" on DHS or the U.S. government. ]

In Utah what is in part a huge hard drive is being built that will be monitoring pretty much
every utterance for words of dissent.

Such a lovely time we are living in :)

John Mansky
John Mansky3 years ago

Thank you for the article...

Amie K.
Amie K.3 years ago

I'm truly stunned. I would have thought the Roberts court would have supported ANYTHING that intrudes on citizen rights since all they care about are the corporations.

Tamara H.
Tamara H.3 years ago

I just wish there were more rulings that protected the innocent rather than protecting the guilty. Go ahead and cheer for the right of privacy...until your personal rights and property are threatened. Then you'll scream for more protection.

Sue Jones
Sue Jones3 years ago

I was glad to see the decision unanimous - gives me hope that SCOTUS is watching out for our Constitutional rights - at least some of the time.

Keevin Shultz
Keevin Shultz3 years ago

How come SCOTUS didn't subpeona at least one GPS or one corporation to testify since they are more important than people and have freedom of speech backed up by all the money to prove it?