March 2012 Bar Bulletin
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March 2012 Bar Bulletin

The Law Behind The News

High Court: GPS Tracking Device on Vehicle Requires Warrant

By Nathaniel Strauss


In a closely watched case that carried broad implications for law enforcement, consumer privacy and the technology sector, the U.S. Supreme Court in January held in United States v. Jones1 that the police may not secretly attach a global positioning system (GPS) device to a car without first obtaining a warrant.2

In 2004, the FBI and the Washington, D.C. police suspected a nightclub owner named Antoine Jones of drug trafficking.3 Based on information gathered through traditional techniques such as visual surveillance and a wiretap of Jones's telephone, the police sought a warrant to attach a GPS tracking device to a Jeep Grand Cherokee registered in his wife's name.4

A federal magistrate agreed to issue the warrant, but required that the police install the device in the District of Columbia and limit their surveillance to 10 days.5 Officers, however, attached the GPS tracker to the Jeep's underside in a Maryland parking lot and tracked the Jeep's movements for 28 days.6 Based on the information collected, federal prosecutors indicted Jones and eventually won his conviction and a life sentence.7

On appeal, the government conceded that it had failed to comply with the search warrant, but submitted that a warrant was not required in the first place.8 The thrust of the government's argument was that the comings and goings of citizens on public streets was public information that anyone, police included, can observe without court permission.9 As a result, Jones had no "reasonable expectation of privacy" in the location of his vehicle.10

While the Court's decision was unanimous, its reasoning was not. Justice Antonin Scalia, writing for a 5-4 majority, sidestepped the government's "reasonable expectation" argument and held that the surreptitious attachment of the device to Jones's Jeep was a trespass under the common law and therefore constituted a per se breach of his privacy.11 Justice Samuel Alito, on the other hand, writing for the four remaining justices, contended that the issue of common-law trespass was not dispositive and that the Court should have held that the police's GPS surveillance violated Jones's reasonable expectation of privacy because it lasted for too long.12

The "reasonable expectation of privacy" test comes from the landmark Fourth Amendment case of Katz v. United States,13 decided in 1967. In Katz, the Supreme Court held that the police required a warrant before attaching a listening device to the outside of a telephone booth to eavesdrop on the conversation inside.14 Justice Potter Stewart, who wrote for the majority in that case, rejected the notion that the telephone booth had to be a "constitutionally protected area" to receive Fourth Amendment protection, writing that "the Fourth Amendment protects people, not places."15 Justice Stewart also quoted prior case law stating that "the premise that property interests control the right of the Government to search and seize has been discredited."16

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