I touched on this decision in Quick Thoughts as a victory for the Fourth Amendment (Fourth Amendment Victory (Quick Thoughts) in regards to unwarranted GPS tracking of an individual. Now I want to dive a little bit deeper into it, in regards to the Founding influences and how they were applied to this case. You can read the Supreme Court of the United States (SCOTUS) opinion and additional concurrence opinions here1 (Cornell University Law School).The Supreme Court's opinion was written by Justice Scalia and is the main one of focus here. Additional concurrence opinions were also written by Justices Sotomayor and Alito who had differing reasons based on precedent however, reaching the same conclusion.
Synopsis
The Government obtained a search warrant permitting it to install a Global-Positioning-System (GPS) tracking device on a vehicle registered to respondent Jones’s wife. The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government than tracked the vehicle’s movements for 28 days. It subsequently secured an indictment of Jones and others on drug trafficking conspiracy charges. The District Court suppressed the GPS data obtained while the vehicle was parked at Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted. The D. C. Circuit reversed, concluding that admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment. (sic from SCOTUS ruling)
Important Facts
First and foremost is to acknowledge a warrant for a GPS tracking device WAS in fact issued. The first thing this shows is that the government (law enforcement) believed it was prudent to secure such a warrant prior to conducting such an operation of attaching and tracking an individual with a GPS device.
The Warrant was issued with an expiration of 10 days from issuance by a judge. The GPS device was not affixed to the vehicle until the 11th day, after the warrant had expired. An expired warrant is the same as having no warrant when it specifically defines bounds and limits either in space (location) or time (period valid).
The Warrant authorized installation in the District of Columbia (a Federal District in which the US District Court is the proper jurisdictional power). The device however was attached in Maryland, a separate jurisdiction from the District Court and from a Federal District into a State. The warrant specified installation within certain geographic boundaries (the District of Columbia, the bounds of the Courts Authority2) but was attached outside those boundaries.
The Device was attached after the warrant had expired and outside the defined geographic boundaries.
The use of the information obtained from the tracking device directly lead to evidence that resulted in the conviction of the defendant.
Implications
The Fourth Amendment
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures , shall not be violated, and no Warrants shall issue , but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The important and relevant portion of the Amendment is the first part, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated". The Amendment continues on what must happen for a warrant to be issued at all.
In the SCOTUS opinion Justice Scalia quickly determines a personally owned vehicle is an "effect", thus immediately providing it the protection of this amendment.
Next the Court perused what attaching a GPS device is for tracking, and concluded that is a search. The private property of a person had to be occupied (or trespassed on) in order to install a device for the purpose of gathering information. This is the very definition of a search, as defined by Merriam-Webster:
to look into or over carefully or thoroughly in an effort to find or discover something:3
SCOTUS quickly defined that a car is an effect and placing a GPS device on it was a search. Because this search of a person's effect came without a warrant, since it both expired and was installed outside the jurisdiction of the warrant, the search was deemed illegal and the conviction was reversed and remanded back to the lower courts.
Court sees property as sacred
While the Founding Influences in the case may not be readily clear, the influence on the motivation of the Amendment is almost inherent to the decision. Can Government track citizens without probable cause? Even a brief and limited background in the history of American Liberty seemingly out of instinct barks back, this is fundamentally wrong, no government should not be able to do that in a free society.SCOTUS does give us more direct Founding Influences in its opinion. Justice Scalia in his opinion quotes a 19th Century Briton, Lord Camden who in 1886 in an argument before the Supreme Court perhaps as plainly and eloquently as possible explained property rights in search and seizure;
“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.”4
Even though this isn't an original source from the founding fathers it goes to the root of the source. It strikes at the motivation of what the fourth amendment is about protection of the individual and property from government. Lord Camden clearly states property sacred, and that any violation of either must be justified by law. This one statement powerfully summarizes the purpose of the fourth amendment, to protect the individual and property from intrusion from the government without due cause, and that cause must be justified by a warrant.
The Supreme Court ties this into how the founders design the fourth amendment. The fact that the fourth amendment clearly statespersons houses papers and effects covers all aspects of the individual and personal property. If property was not also be covered so strongly the fourth amendment would've simply said, "the right of the people to be secure against unreasonable searches and seizures". But the fact that it says in their persons, houses papers and effects draws a did direct connection from the individual to property as well. This direct connection indicates the property is as strongly protected as the individual from unwarranted or unreasonable searches were seizures. Just as a person not individually be tagged to be traced, nor can his property, just as the police may not unreasonably search individual for information they are also restricted in the property as well. The example the Supreme Court used to compare a search from 1789 to this case was similar to having a constable conceal himself in the target's coach in order to track its movements1.
Founding Influences on the Amendment
One of the most direct paths leading to the desire for the fourth amendment, was the Writ of Assistance utilized by the British during America colonial times. The Writ of Assistance allowed customs agents to search people and property without the authorization of a specific warrant as required under the British, law at the time if it was felt that some sort of customs law had been violated. The Writ of Assistance was not a new policy, but became a strong issue in 1761 with its renewal. It would be James Otis of Massachusetts that would make this a pivotal issue in the growing Revolution beginning to take place. James Otis would argue that the Writ of Assistance was unconstitutional under British Law. Even though Britain did not have a written Constitution, it did operate under British Common Law, and the accumulation of Court judgments would determine what law is, and historical limits of what Parliament of the King could do. In Otis’ view, the Writ of Assistance went beyond what the government was empowered to do. Though he lost, his argument was passionate and well received by the Colonists.
The disregard of the protection of individual and personal security from the government is captured in the South Carolina Constitution from 1776.
“And whereas, instead of obtaining that justice, to which the colonists were and are of right entitled, the unnatural civil war into which they were thus precipitated and are involved, hath been prosecuted with unremitted violence, and the governors and others bearing the royal commission in the colonies having broken the most solemn promises and engagements, and violated every obligation of honor, Justice, and humanity, have caused the persons of divers good people to be seized and imprisoned, and their properties to be forcibly taken and detained' or destroyed, without any crime or forfeiture”
The Declaration of Independence also list grievances not directly stating the disregard of property, but rather it is captured in the broad charges against King George,
For abolishing the free system of English laws in a neighboring province, establishing therein an arbitrary government, and enlarging its boundaries, so as to render it at once an example and fit instrument for introducing the same absolute rule into these colonies;
For taking away our charters, abolishing our most valuable laws, and altering fundamentally the forms of our governments;
These are examples of the sanctity and value of privacy and property rights by the colonists as well as founders. Even before the Bill of Rights was drafted in 1789, numerous precedents and writings on the protection of the individual and property already existed throughout the United States.
The Writ of Assistance left a deep mark in the Colonists, soon after hostilities commenced in 1775 States began creating their own sovereign governments with Constitutions. No fewer then seven states plus Vermont which was not yet a state but drafted constitutions for pending statehood, had similar provisions in their Constitution or Bill of Rights that also protected both Individual AND property from unwarranted search or seizures from 1776 up until the Bill of Rights was ratified.
Virginia Bill of Rights, June 12, 1776
SEC. 10. That general warrants, whereby an officer or messenger may be commanded to search suspected places without evidence of a fact committed, or to seize any person or persons not named, or whose offence is not particularly described and supported by evidence, are grievous and oppressive, and ought not to be granted.
Maryland 1776
XXIII. That all warrants, without oath or affirmation, to search suspected places, or to seize any person or property, are grievous and oppressive; and all general warrants-to search suspected places, or to apprehend suspected persons, without naming or describing the place, or the person in special-are illegal, and ought not to be granted.
Pennsylvania 1776
X. That the people have a right to hold themselves, their houses, papers, and possessions free from search and seizure, and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are contrary to that right, and ought not to be granted.
North Carolina, 1776
11. That general warrants, whereby any officer or messenger may be commanded to search suspected places, without evidence of the act committed, or to seize any person or persons not named, whose offenses are not particularly described, and supported by evidence, are dangerous to liberty, and ought not to be granted.
Massachusetts, 1780
Art. XIV. Every subject has a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath or affirmation, and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities, prescribed by the laws.
New Hampshire, 1784
XIX. Every subject hath a right to be secure from all unreasonable searches and seizures of his person, his houses, his papers, and all his possessions. All warrants, therefore, are contrary to this right, if the cause or foundation of them be not previously supported by oath, or affirmation; and if the order in the warrant to a civil officer, to make search in suspected places, or to arrest one or more suspected persons, or to seize their property, be not accompanied with a special designation of the persons or objects of search, arrest, or seizure; and no warrant ought to be issued but in cases, and with the formalities prescribed by the laws.
Pennsylvania, 1790 Article IX
Sec. 8. That the people shall be secure in their persons, houses, papers, and possessions from unreasonable searches and seizures; and that no warrant to search any place, or to seize any person or things, shall issue, without describing them as nearly as may be, nor without probable cause, supported by oath or affirmation.
Vermont, 1777
XI. That the people have a right to hold themselves, their houses, papers and possessions free from search or seizure; and therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property, not particularly described, are contrary to that right, and ought not to be granted.
Vermont, 1786
XII. That the people have a right to hold themselves, their houses, papers and possessions, free from search or seizure: and therefore warrants, without oaths or affirmations first made, affording sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his, her or their property not particularly described, are contrary to that right, and ought not to be granted.
Virginia states that unwarranted or unreasonable search or seizure without naming the person or place or without just cause is both grievous and oppressive and ought not be granted. Maryland, Pennsylvania, Massachusetts and Vermont follow with similar clauses. All of them require some sort of affirmation or oath of fact supporting just cause in the issuing of a warrant to either conduct a search of a person or their property or to seize a person or their property. Without a warrant, no search or seizure may be conducted on a person or their property and in more than a couple of instances to conduct a search or seizure without a warrant is “contrary to the right” or is “grievous and oppressive”
The protection of the individual and their property from the government against searches and seizures is readily apparent that it IS a vital piece of the fabric of Liberty before a Bill of Rights was even considered.
Post Convention
After the Constitution was drafted and presented to the States, concerns quickly arose among various aspects about the new Constitution including the lack of a Bill of Rights.
Centinel II (October 25, 1787)In arguing the Constitution did not provide for the protection of many Rights and Liberties of the people:
“that the people have a right to hold themselves, their houses, papers and possessions free from search or seizure; and that therefore warrants without oaths or affirmations first made, affording a sufficient foundation for them, and whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or his property, not particularly described, are contrary to that right and ought not to be granted;” 8
Letter from Timothy Pickering to John Gardner (December 12, 1787)
Advocating for a Bill of Rights proposed the following
“5. That warrants unsupported by evidence, whereby any officer or messenger may be commanded or required to search suspected places, or to seize any person or persons, his or their property, not particularly described, are grievous and oppressive, and shall not be granted either by the magistrates of the federal government or others.”7
In addition to the concerns of no specific protection from unwarranted search or seizures by the Anti-Federalists writings, two states in agreement to ratify the Constitution also demanded that specific protections be incorporated into the Constitution as Amendments.
Virginia
FOURTEENTH, That every freeman has a right to be secure from all unreasonable searches and siezures of his person, his papers and his property; all warrants, therefore, to search suspected places, or sieze any freeman, his papers or property, without information upon Oath (or affirmation of a person religiously scrupulous of taking an oath) of legal and sufficient cause, are grievous and oppressive; and all general Warrants to search suspected places, or to apprehend any suspected person, without specially naming or describing the place or person, are dangerous and ought not to be granted.5
New York
That every Freeman has a right to be secure from all unreasonable searches and seizures of his person his papers or his property, and therefore, that all Warrants to search suspected places or seize any Freeman his papers or property, without information upon Oath or Affirmation of sufficient cause, are grievous and oppressive; and that all general Warrants (or such in which the place or person suspected are not particularly designated) are dangerous and ought not to be granted.6
These post Convention examples are only a sample of the concerns addressed specifically to the protection of the individual and property from search and seizure by the government. but it can readily be determined, the motivation to prevent anything resembling a Writ of Assistance OR other general violation of a person or their effect was not only a cause of concern, but demanded aspect to be protected from.
Conclusion
The Supreme Court was correct in reaching its decision in unwarranted GPS tracking violates the Fourth Amendment protections of the Constitution. Even though the Court decision was 9-0, its reasoning was not unanimous as two very different perceptives were used in coming to the same conclusion. But the Courts Opinion (not the concurring by differing opinion) was rooted in the motivations of the Fourth Amendment from the Writ of Assistance forward.
Government must be able to justify by law any trespass upon a person or effect, and for government that comes in the form of a warrant. Even though the same movements can be observed without violating that boundary does not in itself give justification to violate that boundary. Convenience of the government is not a justification for a trespass on a person or their property, no matter its nature. Since the warrant had both expired and the device placed outside the warrants jurisdiction this is the same as no warrant at all. To trespass for the purpose of gathering information is the very definition of a search, and the only time the government may search is when it can be justified by oath or affirmation or evidence that gives probable cause a crime is or has been committed and a warrant issued by a court. Trespass onto an individual or effect is not the only measuring stick of the Fourth Amendment, but it is the one of concern here. If a warrant can not be attained, their can be no justification for the government to trespass on the people, "if he will tread upon his neighbour’s ground, he must justify it by law".6: http://beta.consource.org/library/1788/07/10/ny-ratification-convention-debates-and-proceedings-3
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