On January 23, 2012 the Supreme Court released its opinion in United States v. Jones--the GPS surveillance case.
Everyone was curious: had there been a "search" under the Fourth Amendment?
Sure the fact that you are out in public is not a secret in which you have some expectation of privacy. But can the police really keep track of where your car is every moment of they day? How far can the police go?
But when the Supreme Court released the opinion, you could just hear the criminal defense bar say:
RECALCULATING.
Why? Because rather than decide grand questions, Justice Scalia looked to the text of the Constitution and decided the case in front of him by asking WWJD?
After the jump, an explanation.
Scalia did not answer the question of how much intrusion is too much For Scalia (and the majority) the case turned on the fact that police had actually fiddled with the vehicle by attaching something to it. Scalia noted that the Constitution guarantees that the people will be "secure in their persons, houses, papers and effects, against unreasonable searches and seizures . . . ."
So "What would Jefferson do?" How would a founding father treat the attachment of a thingamajig to a vehicle. That's easy. Jefferson or Hamilton would call it a trespass, and therefore a search:
"[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."
I love old law. There's no denying it. Nothing warms my heart more than citations to the English Reports c. 1765 written by somebody named "Lord so-and-so." And I love spelling "neighbour."
But what if the police got all this information without "physically occupying property?"Can they chart all of my movements so long as they don't commit a trespass? How long? A week? A month? All year?
That would be an interesting case, says Justice Scalia. It's just not this case and need not be decided right now:
And so, the defense bar is "Recalculating."
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