Over the next week, Cybercrime Review will feature a series of posts that takes a look at how federal and state courts are applying the Supreme Court's decision in United States v. Jones (previously discussed here).
Many courts, predictably, are simply applying the relatively easy rule established by the majority opinion, authored by Justice Scalia - if law enforcement physically trespasses on personal property, installs a GPS device to acquire data, and then uses the information, a search has occurred.
United States v. Lee, 2012 U.S. Dist. LEXIS 71204 (E.D. Ky. 2012)
GPS device use without a search warrant was unconstitutional. It was used to track the defendant’s movements, and the defendant was stopped for not wearing a seatbelt. Suppression was required because circuit precedent did not expressly allow use of warrantless GPS tracking prior to Jones. (View a more detailed post here.)
State v. Zahn, 2012 WL 862707 (S.D. 2012)
The South Dakota Supreme Court held that use of a GPS device to monitor a person’s movements for an extended period of time (26 days) was a search under Katz, relying on the concurring opinions of Sotomayor and Alito. Additionally, the physical trespass was a search under Jones (Scalia). No warrant exception applies to GPS use, and thus the application here requires suppression. “[P]olice must obtain a warrant before they attach and use a GPS device to monitor an individual's activities over an extended period of time,” wrote the court.
United States v. Peter, 2012 U.S. Dist. LEXIS 72485 (N.D. Ind. 2012)
This case did not involve GPS, but instead consisted of law enforcement entering the curtilage with a drug dog. Entering the curtilage was a trespass (like installing GPS) and it was to acquire information, an analogous situation to Jones. The court held that under Jones, it was a Fourth Amendment search, but the intrusion did not require a search warrant.
Use of concurring opinions to invoke privacy rights
Nearly every court that discusses Jones goes into a detailed discussion of the concurring opinions authored by Justices Sotomayor and Alito. Beyond their possible recognition as a "second majority opinion," these concurring opinions are being used by privacy advocates to invoke rights far beyond those established by Scalia, and some courts have taken note as well.
State v. Dykes, 2012 WL 1677055 (S.C. 2012)
The South Carolina Supreme Court struck down a statute mandating lifetime satellite surveillance for child sex offenders without judicial review of their risk of reoffending, finding that mandatory monitoring for low-risk offenders violates due process. The court, at least in part, relied on the concurring opinions in Jones to reach its decision.
[T]he Constitution guarantees a certain freedom from government intrusion into the day-to-day order of our lives which lies at the heart of a free society. In our opinion, ‘neither liberty nor justice would exist’ if the government could, without sufficient justification, monitor the precise location of an individual twenty-four hours a day until he dies.