WASHINGTON - The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect's car and monitored its movements for 28 days.
But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.
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***** Moderator's Note *****
The FBI had a warrant to attach a GPS locator to the defendent's car, but it was executed after its expiration date, and in Maryland instead of the District of Columbia location specified in the warrant.
We used to have a saying, when I was a Military Policeman: "Catch you next time".
There were two different opinions, one written by Scalia and one written by Alito. Because Sotomayor concurred in part with both, parts of both opinions are decisions for the majority of the Court. The only certain outcome of this case is that more litigation is coming and that the US Supreme Court doesn't intend to provide useful guidance at this time.
The defendant's conviction was reversed by the circuit court on the basis that the defendant's right against unreasonable search had been violated. The Supreme Court let the reversal stand. The government tried to bring up an argument, disallowed as it was not raised in the lower courts, that there was reasonable suspicion and thus probable cause and therefore the search wasn't unconstitutional. However, the way Scalia wrote his opinion didn't rule out upholding that argument if appropriate in another trial.
The government claimed the police had reasonable suspicion to conduct the warrantless search without violating the suspect's rights as it was obvious that the defendant was one of the lead drug trafficking conspirators. It's likely that this argument will be used in future in appeal of another criminal case. If it becomes a majority opinion, who would be above suspicion?
The reasonable suspicion was based on [the theory that] "it's obvious that the defendant was one of the lead conspirators in drug trafficking." It's simply an argument that can be used next time. It's always obvious when someone is a criminal, right, so there's always probable cause when the police just don't want to obtain a warrant, right?
Scalia's originalist argument in the minority part of his opinion dealt with the issue of whether the defendant had an expectation of privacy as there was no trespass as the concept was understood in 1791. After all, a constable might have tracked a suspect's movements by hiding in his carriage. Alito said that would have been possible only with a tiny constable or an enormous carriage.
The search was continuous over a period of nearly a month. The police even had to change the batteries in the tracking device.
The troubling part of Alito's opinion, with which Sotomayor kinda/sorta concurred with, making a majority, was that Alito distinguished between the possibility that a short-term warrantless search might not be unconstitutional, in case of an investigation into an extraordinary offense, but that a long-term warrantless search would be. Alito made no specific comment about what types of extraordinary offenses would qualify for this exception.
Scalia's minority opinion made no distinction between short term and long term.
Scalia's opinion only suggested that warrants should be obtained. Sotomayor kinda/sorta agreed.
Unlike what the lead of the New York Times suggests, the US Supreme Court did not uphold the right to privacy against warrantless searches using modern tracking technology. The Court equivocated on the issue and await further litigation. Who knows what privacy rights will survive after the next case is heard?
Oops. That was an error. The prosecution needs probable cause to obtain a search warrant.
The government's disallowed argument was that they had reasonable suspicion to conduct the search because the defendant was one of the leaders of a criminal conspiracy to distribute drugs. The defendant was being investigated for evidence of his involvement in the criminal conspiracy, so that's a circular argument. The government was not allowed to raise an issue it had not raised in a lower court.
I expect the government to try to raise the issue again in future.
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