(This post is cross-posted with COMAR LAW)
The United States Supreme Court has unanimously held that police officers need a warrant before they can monitor an individual with a GPS tracking device. United States v. Jones, No. 10-1259, 565 U. S. ____ (2012).
The decision provides cautious optimism of renewed concern by the Supreme Court for 4th Amendment protections in the digital age.
In Jones, federal agents placed a GPS tracker under the Jeep of a DC nightclub operator who had suspected involvement in narcotics trafficking. The agents tracked the jeep for 28 days and generated over 2,000 pages of geo-location data.
Eventually the federal government indicted Jones. He moved to throw out the GPS data as the fruit of an unconstitutional search.
All nine justices agreed the use of a GPS tracker without a warrant was unconstitutional, but they disagreed why it was unconstitutional.
Writing for five of his colleagues, Justice Scalia argued the search was unconstitutional because “the Government physically occupied private property for the purpose of obtaining information.” Such a “trespass” on property, combined with the search for information, would have been a search at the time the Fourth Amendment was adopted in the 18th century. Accordingly, the placing of a GPS tracker under a private vehicle for the purposes of gathering investigative data similarly required a warrant.
Justice Scalia acknowledged that his “property-based” analysis was an older approach to the Fourth Amendment, predating the modern test formulated in the 1967 case United States v. Katz.
Under Katz, a court ignores issues of property rights and instead examines an individual’s “reasonable expectations of privacy” in determining the appropriateness of Fourth Amendment guarantees. Justice Scalia argued that Katz augmented, but did not fully replace, the older property-rights based approach.
Four other justices agreed that the GPS tracking at issue was unconstitutional but disagreed with Justice Scalia’s reliance on a property-based approach to 4th Amendment protection. Writing for the concurrence, Justice Alito wrote that the Katz test remained the exclusive method of determining 4th Amendment protection.
Under Katz, Justice Alito concluded that “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.” The 4 weeks of monitoring was long enough to require a warrant.
In a third concurrence, Justice Sotomayor wondered out loud whether current Fourth Amendment jurisprudence can make sense of future technological developments.
This is an excellent question.
Neither test employed by the Court is well prepared for intricate technological fact patterns that are sure to emerge in the coming years.
In an age when people will be able to integrate communications technologies seamlessly into their lives — or even into their bodies — it is clear that modern societies may rest on fundamentally different assumptions than those that existed in 1789.
At some point, law will need to change to reflect this new reality. The real issues will be: (1) who will make those changes — nine justices? Congress? the states? — and (2) whether privacy is buttressed or sacrificed as a result.
Ed. note: this post is cross-posted with COMAR LAW.
These days, people carry their entire lives on their smart-phones. E-mails, text messages, documents, apps, Google searches, Google Maps history, web browsing history — the sheer volume of information contained in personal phones dwarfs what people may have placed even on their desktop computers just a few years ago.
And all of that information may be available to police, should you ever find yourself arrested in California. Just a few days after the beginning of 2011, the California Supreme Court held in People v. Diaz that the police, after taking a defendant into custody, are entitled to search a person’s cell phone — and the contents of that cell phone — as part of their “search incident to arrest” powers.
The facts of the case are straightforward. The defendant Gregory Diaz was arrested for selling ecstasy, but denied any involvement in selling the drug. When he was booked at the station, Diaz was forced to turn over his cell phone. After his initial interview, a sheriff looked through Diaz’s text message folder and uncovered a message that appeared to indicate an involvement in drug trafficking. The sheriff confronted Diaz with the text message, and Diaz subsequently admitted his participation in the crime.
The question before the California Supreme Court was simple: while any other object found on a person can be seized and examined after an arrest, can the police really examine the contents of a modern cellphone?
The California Supreme Court’s unequivocal answer was yes. The Court reviewed federal precedent and held that “such a search is valid as being incident to a lawful custodial arrest.” (Opinion at 1.) US Supreme Court decisions hold that the “loss of privacy upon arrest extends beyond the arrestee’s body to include personal property immediately associated with the person of the arrestee at the time of arrest” and “to open and examine” what they find. (Opinion at 15 (citation omitted).)
Because federal law did not seem to distinguish between electronic personal effects and other items (such as cigarette packages or wallets), privacy protections over the cell phone are extinguished the moment a person is taken into custody.
In dissent, Justice Werdegar strongly disagreed with his colleagues. “The potential intrusion on informational privacy involved in a police search of a person’s mobile phone, smartphone or handheld computer is unique among searches of an arrestee’s person and effects. . . . An individual lawfully arrested and taken into police custody necessarily loses much of his or her bodily privacy, but does not necessarily suffer a reduction in the informational privacy that protects the arrestee’s records.” (Dissent at 2, 11 (emphasis in original).)
The summary of all of this is that in California, if you are arrested, the police appear to have authority to search the contents of your cell phone and admit any evidence they find in court.
Interestingly enough, this decision is at odds with a May 2007 decision written by Judge Susan Illston, a federal judge sitting in the Northern District of California. In United States v. Park, San Francisco police officers searched the address books and telephone logs found in the cell phones of individuals arrested on charges of cultivation of marijuana. The officers submitted vague declarations as to when they searched the contents of the cell phone, and what they were looking for.
After reviewing federal law, Judge Illston held that any evidence uncovered from the search could not be admitted into evidence. “The searches at issue here go far beyond the original rationales for searches incident to arrest, which were to remove weapons to ensure the safety of officers and bystanders, and the need to prevent concealment or destruction of evidence. . . . [D]ue to the quantity and quality of information that can be stored on a cellular phone, a cellular phone should not be characterized as an element of individual’s clothing or person, but rather as a possession within an arrestee’s immediate control [that has] fourth amendment protection at the station house.” United States v. Park, No. CR 05-375 SI, 2007 U.S. Dist. LEXIS 40596, *24, *27 (N.D. Cal. May 23, 2007).
Different court decisions on this issue indicate eventual Supreme Court review. And, truth be told, where the US Supreme Court comes down on cell phone searches incident to arrest may entirely depend on whether or not the justices are using an iPhone or a Droid versus something that just calls and texts.
