SUPREME COURT OF THE UNITED STATES
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No. 10–1259
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UNITED STATES, PETITIONER v. ANTOINE JONES
on writ of certiorari to the united states
court of appeals for the district of columbia circuit
[January 23, 2012]
Justice Alito, with
whom Justice Ginsburg, Justice Breyer, and Justice Kagan join,
concurring in the judgment.
This case requires us
to apply the Fourth Amendment’s prohibition of unreasonable
searches and seizures to a 21st-century surveillance technique, the
use of a Global Po-sitioning System (GPS) device to monitor a
vehicle’s move-ments for an extended period of time. Ironically,
the Court has chosen to decide this case based on 18th-century tort
law. By attaching a small GPS device [
1 ] to the underside of the vehicle that respondent drove,
the law enforcement officers in this case engaged in conduct that
might have provided grounds in 1791 for a suit for trespass to
chattels. [
2 ] And for this
reason, the Court concludes, the installation and use of the GPS
device constituted a search. Ante, at 3–4.
This holding, in my
judgment, is unwise. It strains the language of the Fourth
Amendment; it has little if any support in current Fourth Amendment
case law; and it is highly artificial.
I would analyze the
question presented in this case by asking whether respondent’s
reasonable expectations of privacy were violated by the long-term
monitoring of the movements of the vehicle he drove.
I
A
The Fourth Amendment
prohibits “unreasonable searches and seizures,” and the Court makes
very little effort to explain how the attachment or use of the GPS
device fits within these terms. The Court does not contend that
there was a seizure. A seizure of property occurs when there is
“some meaningful interference with an in-dividual’s possessory
interests in that property,” United States v. Jacobsen, 466
U. S. 109, 113 (1984) , and here there was none. Indeed, the
success of the surveillance technique that the officers employed
was dependent on the fact that the GPS did not interfere in any way
with the operation of the vehicle, for if any such interference had
been detected, the device might have been discovered.
The Court does claim
that the installation and use of the GPS constituted a search, see
ante, at 3–4, but this con-clusion is dependent on the questionable
proposition that these two procedures cannot be separated for
purposes of Fourth Amendment analysis. If these two procedures are
analyzed separately, it is not at all clear from the Court’s
opinion why either should be regarded as a search. It is clear that
the attachment of the GPS device was not itself a search; if the
device had not functioned or if the officers had not used it, no
information would have been obtained. And the Court does not
contend that the use of the device constituted a search either. On
the contrary, the Court accepts the holding in United States v.
Knotts, 460 U. S. 276 (1983) , that the use of a
surreptitiously planted electronic device to monitor a vehicle’s
movements on public roads did not amount to a search. See ante, at
7.
The Court argues—and I
agree—that “we must ‘assur[e] preservation of that degree of
privacy against government that existed when the Fourth Amendment
was adopted.’ ” Ante, at 5 (quoting Kyllo v. United States,
533 U. S. 27 , 34 (2001)). But it is almost impossible to
think of late- 18th-century situations that are analogous to what
took place in this case. (Is it possible to imagine a case in which
a constable secreted himself somewhere in a coach and remained
there for a period of time in order to monitor the movements of the
coach’s owner? [
3 ] ) The
Court’s theory seems to be that the concept of a search, as
originally un-derstood, comprehended any technical trespass that
led to the gathering of evidence, but we know that this is
in-correct. At common law, any unauthorized intrusion on private
property was actionable, see Prosser & Keeton 75, but a
trespass on open fields, as opposed to the “curtilage” of a home,
does not fall within the scope of the Fourth Amendment because
private property outside the curtilage is not part of a “hous[e]”
within the meaning of the Fourth Amendment. See Oliver v. United
States, 466 U. S. 170 (1984) ; Hester v. United States, 265
U. S. 57 (1924) .
B
The Court’s reasoning
in this case is very similar to that in the Court’s early decisions
involving wiretapping and electronic eavesdropping, namely, that a
technical trespass followed by the gathering of evidence
constitutes a search. In the early electronic surveillance cases,
the Court concluded that a Fourth Amendment search occurred when
private conversations were monitored as a result of an
“unauthorized physical penetration into the premises occupied” by
the defendant. Silverman v. United States, 365 U. S. 505, 509
(1961) . In Silverman, police officers listened to conversations in
an attached home by inserting a “spike mike” through the wall that
this house shared with the vacant house next door. Id., at 506.
This procedure was held to be a search because the mike made
contact with a heating duct on the other side of the wall and thus
“usurp[ed] . . . an integral part of the premises.” Id.,
at 511.
By contrast, in cases
in which there was no trespass, it was held that there was no
search. Thus, in Olmstead v. United States, 277 U. S. 438
(1928) , the Court found that the Fourth Amendment did not apply
because “[t]he taps from house lines were made in the streets near
the houses.” Id., at 457. Similarly, the Court concluded that no
search occurred in Goldman v. United States, 316 U. S. 129,
135 (1942) , where a “detectaphone” was placed on the outer wall of
defendant’s office for the purpose of overhearing conversations
held within the room.
This trespass-based
rule was repeatedly criticized. In Olmstead, Justice Brandeis wrote
that it was “immaterial where the physical connection with the
telephone wires was made.” 277 U. S., at 479 (dissenting
opinion). Al-though a private conversation transmitted by wire did
not fall within the literal words of the Fourth Amendment, he
argued, the Amendment should be understood as prohibiting “every
unjustifiable intrusion by the government upon the privacy of the
individual.” Id., at 478. See also, e.g., Silverman, supra, at 513
(Douglas, J., concurring) (“The concept of ‘an unauthorized
physical penetration into the premises,’ on which the present
decision rests seems to me beside the point. Was not the wrong
. . . done when the intimacies of the home were tapped,
recorded, or revealed? The depth of the penetration of the
electronic device—even the degree of its remoteness from the inside
of the house—is not the measure of the injury”); Goldman, supra, at
139 (Murphy, J., dissenting) (“[T]he search of one’s home or office
no longer requires physical entry, for science has brought forth
far more effective devices for the invasion of a person’s privacy
than the direct and obvious methods of oppression which were
detested by our forebears and which inspired the Fourth
Amendment”).
Katz v. United States,
389 U. S. 347 (1967) , finally did away with the old approach,
holding that a trespass was not required for a Fourth Amendment
violation. Katz in-volved the use of a listening device that was
attached to the outside of a public telephone booth and that
allowed police officers to eavesdrop on one end of the target’s
phone conversation. This procedure did not physically intrude on
the area occupied by the target, but the Katz Court,
“repudiate[ed]” the old doctrine, Rakas v. Illinois, 439 U. S.
128, 143 (1978) , and held that “[t]he fact that the electronic
device employed . . . did not happen to penetrate the
wall of the booth can have no constitutional significance,” 389
U. S., at 353 (“[T]he reach of th[e] [Fourth] Amendment cannot
turn upon the presence or absence of a physical intrusion into any
given enclosure”); see Rakas, supra, at 143 (describing Katz as
holding that the “ca-pacity to claim the protection for the Fourth
Amendment depends not upon a property right in the invaded place
but upon whether the person who claims the protection of the
Amendment has a legitimate expectation of privacy in the invaded
place”); Kyllo, supra, at 32 (“We have since decoupled violation of
a person’s Fourth Amendment rights from trespassory violation of
his property”). What mattered, the Court now held, was whether the
conduct at issue “violated the privacy upon which [the defendant]
justifiably relied while using the telephone booth.” Katz, supra,
at 353.
Under this approach, as
the Court later put it when addressing the relevance of a technical
trespass, “an actual trespass is neither necessary nor sufficient
to establish a constitutional violation.” United States v. Karo,
468 U. S. 705, 713 (1984) (emphasis added). Ibid.
(“Compar[ing] Katz v. United States, 389 U. S. 347 (1967) (no
trespass, but Fourth Amendment violation), with Oliver v. United
States, 466 U. S. 170 (1984) (trespass, but no Fourth
Amendment violation)”). In Oliver, the Court wrote:
“The existence of a property right is but
one element in determining whether expectations of privacy are
legitimate. ‘The premise that property interests control the right
of the Government to search and seize has been discredited.’ Katz,
389 U. S., at 353, (quoting Warden v. Hayden, 387 U. S.
294, 304 (1967) ; some internal quotation marks omitted).” 466
U. S., at 183.
II
The majority suggests
that two post-Katz decisions—Soldal v. Cook County, 506 U. S.
56 (1992) , and Alderman v. United States, 394 U. S. 165
(1969) —show that a technical trespass is sufficient to establish
the existence of a search, but they provide little support.
In Soldal, the Court
held that towing away a trailer home without the owner’s consent
constituted a seizure even if this did not invade the occupants’
personal privacy. But in the present case, the Court does not find
that there was a seizure, and it is clear that none occurred.
In Alderman, the Court
held that the Fourth Amendment rights of homeowners were implicated
by the use of a surreptitiously planted listening device to monitor
third-party conversations that occurred within their home. See 394
U. S., at 176–180. Alderman is best understood to mean that
the homeowners had a legitimate expectation of privacy in all
conversations that took place under their roof. See Rakas, 439
U. S., at 144, n. 12 (citing Alderman for the proposition that
“the Court has not altogether abandoned use of property concepts in
determining the presence or absence of the privacy interests
protected by that Amendment”); 439 U. S., at 153 (Powell, J.,
concurring) (citing Alderman for the proposition that “property
rights reflect society’s explicit recognition of a person’s
au-thority to act as he wishes in certain areas, and there- fore
should be considered in determining whether an individual’s
expectations of privacy are reasonable); Karo, supra, at 732
(Stevens, J., concurring in part and dissenting in part) (citing
Alderman in support of the proposition that “a homeowner has a
reasonable expectation of privacy in the contents of his home,
including items owned by others”).
In sum, the majority is
hard pressed to find support in post-Katz cases for its
trespass-based theory.
III
Disharmony with a
substantial body of existing case law is only one of the problems
with the Court’s approach in this case.
I will briefly note
four others. First, the Court’s reasoning largely disregards what
is really important (the use of a GPS for the purpose of long-term
tracking) and instead attaches great significance to something that
most would view as relatively minor (attaching to the bottom of a
car a small, light object that does not interfere in any way with
the car’s operation). Attaching such an object is generally
regarded as so trivial that it does not provide a basis for
recovery under modern tort law. See Prosser & Keeton §14, at 87
(harmless or trivial contact with personal property not
actionable); D. Dobbs, Law of Torts 124 (2000) (same). But under
the Court’s reasoning, this conduct may violate the Fourth
Amendment. By contrast, if long-term monitoring can be accomplished
without committing a technical trespass—suppose, for example, that
the Federal Government required or persuaded auto manufacturers to
include a GPS tracking device in every car—the Court’s theory would
provide no protection.
Second, the Court’s
approach leads to incongruous results. If the police attach a GPS
device to a car and use the device to follow the car for even a
brief time, under the Court’s theory, the Fourth Amendment applies.
But if the police follow the same car for a much longer period
using unmarked cars and aerial assistance, this tracking is not
subject to any Fourth Amendment constraints.
In the present case,
the Fourth Amendment applies, the Court concludes, because the
officers installed the GPS device after respondent’s wife, to whom
the car was registered, turned it over to respondent for his
exclusive use. See ante, at 8. But if the GPS had been attached
prior to that time, the Court’s theory would lead to a different
result. The Court proceeds on the assumption that respondent “had
at least the property rights of a bailee,” ante, at 3, n. 2, but a
bailee may sue for a trespass to chattel only if the injury occurs
during the term of the bailment. See 8A Am. Jur. 2d, Bailment §166,
pp. 685–686 (2009). So if the GPS device had been installed
before respondent’s wife gave him the keys, respondent would have
no claim for trespass—and, presumably, no Fourth Amendment claim
either.
Third, under the
Court’s theory, the coverage of the Fourth Amendment may vary from
State to State. If the events at issue here had occurred in a
community property State [
4 ]
or a State that has adopted the Uniform Marital Property Act, [
5 ] respondent would likely be
an owner of the vehicle, and it would not matter whether the GPS
was installed before or after his wife turned over the keys. In
non-community-property States, on the other hand, the registration
of the vehicle in the name of respondent’s wife would generally be
regarded as presumptive evidence that she was the sole owner. See
60 C. J. S., Motor Vehicles §231, pp. 398–399
(2002); 8 Am. Jur. 2d, Automobiles §1208, pp. 859–860
(2007).
Fourth, the Court’s
reliance on the law of trespass will present particularly vexing
problems in cases involving surveillance that is carried out by
making electronic, as opposed to physical, contact with the item to
be tracked. For example, suppose that the officers in the present
case had followed respondent by surreptitiously activating a stolen
vehicle detection system that came with the car when it was
purchased. Would the sending of a radio signal to activate this
system constitute a trespass to chattels? Trespass to chattels has
traditionally required a physical touching of the property. See
Restatement (Second) of Torts §217 and Comment e (1963 and 1964);
Dobbs, supra, at 123. In recent years, courts have wrestled with
the application of this old tort in cases involving unwanted
electronic contact with computer systems, and some have held that
even the transmission of electrons that occurs when a communication
is sent from one computer to another is enough. See, e.g.,
CompuServe, Inc. v. Cyber Promotions, Inc. 962 F. Supp. 1015, 1021
(SD Ohio 1997); Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th
1559, 1566, n. 6 (1996). But may such decisions be followed in
applying the Court’s trespass theory? Assuming that what matters
under the Court’s theory is the law of trespass as it existed at
the time of the adoption of the Fourth Amendment, do these recent
decisions represent a change in the law or simply the application
of the old tort to new situations?
IV
A
The Katz
expectation-of-privacy test avoids the problems and complications
noted above, but it is not without its own difficulties. It
involves a degree of circularity, see Kyllo, 533 U. S., at 34,
and judges are apt to confuse their own expectations of privacy
with those of the hypothetical reasonable person to which the Katz
test looks. See Minnesota v. Carter, 525 U. S. 83, 97 (1998)
(Scalia, J., concurring). In addition, the Katz test rests on the
assumption that this hypothetical reasonable person has a
well-developed and stable set of privacy expectations. But
technology can change those expectations. Dramatic technological
change may lead to periods in which popular expectations are in
flux and may ultimately produce significant changes in popular
attitudes. New technology may provide increased convenience or
security at the expense of privacy, and many people may find the
tradeoff worthwhile. And even if the public does not welcome the
diminution of privacy that new technology entails, they may
eventually reconcile themselves to this development as inevitable.
[
6 ]
On the other hand,
concern about new intrusions on privacy may spur the enactment of
legislation to protect against these intrusions. This is what
ultimately happened with respect to wiretapping. After Katz,
Congress did not leave it to the courts to develop a body of Fourth
Amendment case law governing that complex subject. Instead,
Congress promptly enacted a comprehensive statute, see 18
U. S. C. §§2510–2522 (2006 ed. and Supp. IV), and since
that time, the regulation of wiretapping has been governed
primarily by statute and not by case law. [
7 ] In an ironic sense, although Katz overruled
Olmstead, Chief Justice Taft’s suggestion in the latter case that
the regulation of wiretapping was a matter better left for
Congress, see 277 U. S., at 465–466, has been borne out.
B
Recent years have
seen the emergence of many new devices that permit the monitoring
of a person’s movements. In some locales, closed-circuit television
video monitoring is becoming ubiquitous. On toll roads, automatic
toll collection systems create a precise record of the movements of
motorists who choose to make use of that convenience. Many
motorists purchase cars that are equipped with devices that permit
a central station to ascertain the car’s location at any time so
that roadside assistance may be provided if needed and the car may
be found if it is stolen.
Perhaps most
significant, cell phones and other wireless devices now permit
wireless carriers to track and record the location of users—and as
of June 2011, it has been reported, there were more than 322
million wireless devices in use in the United States. [
8 ] For older phones, the accuracy of
the location information depends on the den-sity of the tower
network, but new “smart phones,” which are equipped with a GPS
device, permit more precise tracking. For example, when a user
activates the GPS on such a phone, a provider is able to monitor
the phone’s location and speed of movement and can then report back
real-time traffic conditions after combining (“crowdsourcing”) the
speed of all such phones on any particular road. [
9 ] Similarly, phone-location-tracking
services are offered as “social” tools, allowing consumers to find
(or to avoid) others who enroll in these services. The availability
and use of these and other new devices will continue to shape the
average person’s expectations about the privacy of his or her daily
movements.
V
In the pre-computer
age, the greatest protections of privacy were neither
constitutional nor statutory, but practical. Traditional
surveillance for any extended period of time was difficult and
costly and therefore rarely undertaken. The surveillance at issue
in this case—constant monitoring of the location of a vehicle for
four weeks—would have required a large team of agents, multiple
vehicles, and perhaps aerial assistance. [
10 ] Only an investigation of unusual importance
could have justified such an expenditure of law enforcement
resources. Devices like the one used in the present case, however,
make long-term monitoring relatively easy and cheap. In
circumstances involving dramatic technological change, the best
solution to privacy concerns may be legislative. See, e.g., Kerr,
102 Mich. L. Rev., at 805–806. A legislative body is well situated
to gauge changing public attitudes, to draw detailed lines, and to
balance privacy and public safety in a comprehensive way.
To date, however,
Congress and most States have not enacted statutes regulating the
use of GPS tracking technology for law enforcement purposes. The
best that we can do in this case is to apply existing Fourth
Amendment doctrine and to ask whether the use of GPS tracking in a
particular case involved a degree of intrusion that a reasonable
person would not have anticipated.
Under this approach,
relatively short-term monitoring of a person’s movements on public
streets accords with expectations of privacy that our society has
recognized as reasonable. See Knotts, 460 U. S., at 281–282.
But the use of longer term GPS monitoring in investigations of most
offenses impinges on expectations of privacy. For such offenses,
society’s expectation has been that law enforcement agents and
others would not—and indeed, in the main, simply could not—secretly
monitor and catalogue every single movement of an individual’s car
for a very long period. In this case, for four weeks, law
enforcement agents tracked every movement that respondent made in
the vehicle he was driving. We need not identify with precision the
point at which the tracking of this vehicle became a search, for
the line was surely crossed before the 4-week mark. Other cases may
present more difficult questions. But where uncertainty exists with
respect to whether a certain period of GPS surveil lance is long
enough to constitute a Fourth Amendment search, the police may
always seek a warrant. [
11
] We also need not consider whether prolonged GPS monitoring in the
context of investigations involving extraordinary offenses would
similarly intrude on a constitutionally protected sphere of
privacy. In such cases, long-term tracking might have been mounted
using previously available techniques.
* * *
For these reasons, I
conclude that the lengthy monitoring that occurred in this case
constituted a search under the Fourth Amendment. I therefore agree
with the majority that the decision of the Court of Appeals must be
affirmed.