There's been much written about the Supreme Court's recent 4th Amendment case on GPS tracking devices. Unfortunately, neither U.S. v. Jones nor all that's been written about it gives us a clear roadway of understanding in this yet developed area of law. If you believe the media, the Supreme Court ruled that officers now need a search warrant to attach and monitor a GPS tracking device. Wrong . . . the Court did not so rule.
What the Court did rule was that attaching a GPS tracking device to a car and monitoring its every move now constitutes a "search" for purposes of the 4th Amendment. The question of whether that requires a search warrant, however, has been left for another day.
Don't get me wrong; I'm not complaining. There are several good takeaways from Jones. For one, it reminds us that there are several ways to approach 4th Amendment analysis. On any given search issue, we often tend to think only in terms of a person's reasonable expectation of privacy. In Jones, however, several other theories of analyses were applied.
As complex, and perhaps confusing, as Jones is, it does push us to consider broadening our arguments in district courts where possible. Clearly, even though the law remains unsettled, Supreme Court Justices make one thing crystal clear: they are willing to consider alternative theories of analysis when confronting the government's intrusion into people's lives.
Jones left open many questions in the area of electronic surveillance (an excellent source for the many articles on Jones is found at www.scotusblog.com). For example, it leaves open whether the 4th Amendment is invoked when the police decides to monitor your travel using cell phone signals where no physical trespass occurs. As we saw in Jones, the government tried hard to convince the Court that it should be left free to electronically monitor every move of any vehicle it chooses. It argued that 4th Amendment analysis was unnecessary, because monitoring a vehicle's movement across open roadways did not impinge on anyone's reasonable expectation of privacy. As Justice Breyer observed, however, this degree of government oversight ominously "sounds like 1984." At least for now, Big Brother was checked.