On Monday, the Supreme Court unanimously held that police cannot attach a GPS tracking device to a suspect’s cars without a warrant. Though the decision was unanimous, it marked a clash of competing ideologies regarding privacy protection, and highlighted a dispute over the Constitutional importance of private property.
The case, United States v. Jones, involved a 2005 incident in which police and FBI agents attached a GPS tracker to a car driven by Washington D.C. nightclub owner and suspected drug trafficker Antoine Jones. The authorities installed the device without a valid warrant and used it to prove that Jones visited a house containing over 200 pounds of cocaine and $850 thousand in cash.
A five-justice majority, led by Justice Antonin Scalia, held that the GPS installation was an unlawful search in violation of the Fourth Amendment. The majority reasoned that since the installation required investigators to interfere with private property by physically affixing the device to the car, it violated the Fourth Amendment’s protection of people’s “effects” (i.e. personal property) from warrantless searches.
A four-justice minority, led by Justice Samuel Alito, agreed with the result, but disagreed with the majority’s reasoning. The minority argued that the majority’s property rights-based reasoning was outdated, having been replaced by a “reasonable expectation of privacy” standard set forth in the 1967 Supreme Court case Katz v. United States.
Before Katz, courts determining whether a police investigation violated the Fourth Amendment looked almost exclusively at whether the police interfered with the suspect’s property. Thus, a warrantless telephone wiretap installed inside the suspect’s house was unconstitutional, while the same wiretap installed in a junction box on a public street was permissible. In Katz, the court sought to correct this apparent injustice by ruling that the Fourth Amendment prohibits police searches that violate a person’s “reasonable expectation of privacy,” regardless of whether they interfere directly with the person’s property.
The minority in Monday’s decision chided the majority for deciding the case on the outdated property rights rationale, and warned that the majority’s reasoning provided too little protection for citizens in today’s highly technological environment. What if, the minority asked, police engage in warrantless monitoring of GPS devices that come factory-equipped on cars and cell phones? In such cases, there would be no direct interference with property on the part of the police, and therefore no protection under the majority’s reasoning.
The majority returned fire, stating that the minority misconstrued property rights versus “reasonable expectation of privacy” as a one-or-the-other proposition. If a police tactic does not violate a traditional property right, Scalia wrote, it should be analyzed under the Katz standard. But if a police tactic does violate a property right—generally a very clear-cut analysis—then a court can declare it unconstitutional without delving into the more subjective territory of “reasonable expectation of privacy.” Thus, citizens have two possible sources of protection under the Fourth Amendment, not just one.
Not only did Monday’s decision increase protection against unlawful searches, it reaffirmed the importance of property rights in a small, but encouraging, way. Some Constitutional rights, such as freedom of speech and freedom of the press, receive zealous protection from the courts. Government policies infringing such freedoms must survive “strict judicial scrutiny,” i.e. the government must demonstrate that they serve a compelling public interest and restrict the right as little as possible. Government infringement of other rights, including property rights, receive only “rational basis review,” meaning that the infringement is allowed as long as it could achieve a legitimate government purpose—even a hypothetical one dreamed up by the court and never actually considered by the government. Monday’s decision, though narrowly limited, is nevertheless an affirmation by the Supreme Court that property rights are important too. Whether the case signals a trend toward greater judicial protection of property rights in general, it is too early to say.
