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One of the more interesting things about this decision is that Alito and Scalia came down on different sides of the issue, and there were at least three different rationales behind the concurring opinions.
http://m.wired.com/threatlevel/2012/...us-gps-ruling/The Supreme Court ruled unanimously Monday that law enforcement authorities need a probable-cause warrant from a judge to affix a GPS device to a vehicle and monitor its every move — but the justices did not say that a warrant was needed in all cases.
The decision (.pdf) in what is arguably the biggest Fourth Amendment case in the computer age, rejected the Obama administration’s position that attaching a GPS device to a vehicle was not a search. The government had told the high court that it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.
“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, cons utes a ‘search,’” Justice Antonin Scalia wrote, declining to say whether that search required a warrant.
In a footnote, Scalia added that, “Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have cons uted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the government obtains information by physically intruding on a cons utionally protected area, such a search has undoubtedly occurred.”
One of the more interesting things about this decision is that Alito and Scalia came down on different sides of the issue, and there were at least three different rationales behind the concurring opinions.
the decision: http://online.wsj.com/article/SB1000...abs%3Ddo ent
How this was not a unanimous decision is alarming and disgusting
"The powers not delegated to the United States by the Cons ution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people."
http://www.scotusblog.com/2012/01/re...s/#more-137698Here is the upshot. Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view. Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.
That alignment of Justices importantly leaves two questions unanswered. First, does the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it cons utes a search at all.
Second, assuming no warrant is required for installation, is a warrant required for short-term monitoring of the GPS device? Again, the answer may be no, as the majority con uously avoids addressing this issue and four members of the Court (again, those who join the Alito concurrence) squarely say that the answer is “no” (Alito op. at 13). Justice Sotomayor alone says that this scenario “will require particular attention.”
Note that the government has to prevail on both of those later questions. (If a warrant is required to install the device in the first place, then whether it could be monitored for a short time without a warrant is essentially an academic question.) But I think that there is an excellent chance that it will do so.
The real fight is over the first question of the installation. Only one member of today’s majority has to adopt the view that the “search” of installing the GPS is sufficiently minor to not require a warrant. Whether that happens will depend on whether every member of today’s majority is willing to extend the reinvigoration of a property-rights model of Fourth Amendment privacy to also require a vigorous application of the warrant requirement. Justice Sotomayor is, and I expect Justice Scalia agrees. The others are an open question. If no warrant is required, then it seems quite likely that one member of the majority (which is composed of conservative members of the Court) would join the four Justices in Alito’s concurrence to hold that short-term monitoring is not a search at all.
As a result, I think that although the government lost Jones 9-0, it did far better than everyone has recognized so far. I believe that it is more likely than not to prevail in a later case in which it installs a GPS monitor without a warrant and tracks the individual for only a couple of days.
more great stuff on Jones at scotusblog:
http://www.scotusblog.com/2012/01/wh...-most-thought/
via Volokh
http://blogs.wsj.com/digits/2012/02/...-court-ruling/The Supreme Court’s recent ruling overturning the warrantless use of GPS tracking devices has caused a “sea change” inside the U.S. Justice Department, according to FBI General Counsel Andrew Weissmann.
Mr. Weissmann, speaking at a University of San Francisco conference called “Big Brother in the 21st Century” on Friday, said that the court ruling prompted the FBI to turn off about 3,000 GPS tracking devices that were in use.
These devices were often stuck underneath cars to track the movements of the car owners. In U.S. v. Jones, the Supreme Court ruled that using a device to track a car owner without a search warrant violated the law.
After the ruling, the FBI had a problem collecting the devices that it had turned off, Mr. Weissmann said. In some cases, he said, the FBI sought court orders to obtain permission to turn the devices on briefly – only in order to locate and retrieve them.
3000 devices?
good thing i dont drive...
"prompted the FBI to turn off about 3,000 GPS tracking devices that were in use."
Willard Gecko's $10,000 says the FBI didn't turn them (all) off.
They don't obey the law, they enforce the law on others.
Who watches the Watchers?
http://www.wired.com/threatlevel/201...f-gps-tracker/A federal judge in Iowa has ruled that evidence gathered through the warrantless use of covert GPS vehicle trackers can be used to prosecute a suspected drug trafficker, despite a Supreme Court decision this year that found such tracking uncons utional without a warrant.
U.S. District Judge Mark Bennett in Sioux City ruled last week (.pdf) that the GPS tracking evidence gathered by federal DEA agents last year against suspected drug trafficker Angel Amaya, prior to the Supreme Court ruling, can be submitted in court because the agents were acting in good faith at the time. The agents, the judge said, were relying on what was then a binding 8th U.S. Circuit Court of Appeals precedent that authorized the use of warrantless GPS trackers for surveillance in Iowa and six other states.
It’s the third of such “good faith” rulings by federal court judges in the wake of the recent and historic Supreme Court decision, all of which illustrate that the Supreme Court ruling can be easily skirted by law enforcement agents and prosecutors who work in circuit court regions where it was previously legal to use the devices without a warrant.
Legal experts say the “good faith” exception, which comes out of another court ruling last year, has created a mess of the Supreme Court’s GPS decision.
“[I]t is a bit of an end-run around for law enforcement,” says Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation. “And it leads to disparate results because whether [GPS evidence] gets suppressed or not depends on what the law of the circuit was prior to Jones.”
^ the good news is that there's an expiration date for that
for self serving expeditiousness? One would hope so.
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