So far, the Supreme Court’s October 2011 term has lived up to the hype. Yesterday, the Supreme Court issued its highly anticipated opinion in the GPS-Tracking Case, in which it unanimously held “that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” under the Fourth Amendment. Although the Court avoided directly addressing the issue, this may mean that law enforcement must now obtain a search warrant before installing a GPS-tracking device on a suspect’s car. You can read the full opinion on the Supreme Court's website here.
It's worth noting that when the Court first surveyed the privacy landscape some forty years ago in Katz v. U.S., telephones were connected by wires and global positioning required a map and compass. Today, however, modern technology allows us to connect by "texting," "tweeting," or "facebooking." And finding our precise latitude and longitude on the globe is a matter of simply turning on our cell phones.
The reasonable expectation of privacy test is, not suprisingly, beginning to show signs of aging. As emerging technologies continue to reshape the nature and volume of personal information we share with others, expect to see courts continue to struggle with hitting the moving target that is our "reasonable expectation of privacy." Take, for example, the following circuit conflict over the warrantless search of cell phones, which was recently identified by a federal court in Oregon:
Compare, e.g., United States v. Hill, 2011 WL 90130 (N.D. Cal. Jan. 10, 2011) (upholding warrantless search of iPhone photos incident to arrest); United States v. Finley, 477 F.3d 250, 259-60 (5th Cir. 2007) (upholding warrantless search of cell phone incident to arrest); United States v. Wurie, 612 F.Supp.2d 104, 109-111 (D. Mass. 2009) (same); People v. Diaz, 2011 WL 6158 (Cal. Jan 3, 2011), (same) with United States v. Quintana, 594 F.Supp.2d 1291, 1298-99 (M.D. Fla. 2009) (holding warrantless search of cell phone not justified as search incident to arrest); United States v. Park, 2007 WL 1521573 (N.D. Cal. May 23, 2007) (same); United States v. Lasalle, 2007 WL 1390820 (D.Hawai'i May 9, 2007) (finding warrantless cell phone search invalid where it was not clear that phone was on defendant's person and search not contemporaneous with arrest); State v. Smith, 920 N.E. 2d 949 (Ohio 2009) (suppressing warrantless cell phone search). . . .
Schlossberg v. Solesbee, No. 10-6014-TC, at n.2 (D. Or. Jan. 13, 2012).
- Julia Angwin & Scott Thurm, Judges Weigh Phone Tracking, WSJ.com (Nov. 9, 2011) (available here).
- Bill Mears, Justices rule against police, say GPS surveillance requires search warrant, CNN.com (Jan. 23, 2012) (available here).
- Adam Liptak, Justices Say GPS Tracker Violated Privacy Rights, NY Times (Jan, 23, 2012) (available here).
- Mike Sacks, Warrantless GPS Tracking Unconstitutional, Supreme Court Rules, HuffingtonPost.com (Jan. 23, 2012) (available here).
(Image courtesy of WSJ.com).