Federal Criminal Lawyer Blog

Earlier this morning the United States Supreme Court issued a unanimous 9-0 decision, holding that the police engaged in a Fourth Amendment "search" when, without the benefit of a valid warrant, they put a GPS tracking device on a suspect's vehicle. The case is Jones v. United States. This is potentially a huge ruling that we need to assess more fully in the days and weeks to come, but for now, let's look at the decision itself.

Law enforcement officials in the District of Columbia suspected Antoine Jones of being a large-scale drug trafficker. Among other investigative tools, they wanted to put a Global-Positioning-System (GPS) monitor on a vehicle that Jones regularly drove. The officers got a warrant, but messed up and did not put the monitor on the vehicle within the 10-day window authorized by the judge who issued the warrant. As a result, the monitor was put on the vehicle without the benefit of a valid warrant. The GPS monitor tracked Jones' travels for about a month, resulting in evidence that tied him to a large drug stash-house, among other information. This evidence was then used to convict Jones.

All nine justices on the Supreme Court agreed that this was an illegal search under the Fourth Amendment. Although they all reached the same result, there is a big difference between the justices as to the underlying rationale for the decision.

Justice Scalia wrote the majority opinion for himself and four other justices. Scalia basically resurrected the property-based view of the Fourth Amendment, noting that the officers engaged in an old-fashioned common law trespass when they placed the GPS monitor on the vehicle. Such a trespass is always a "search" when accompanied by an intention to obtain information.

Justice Alioto wrote a concurrence for he and three other justices. Alito wanted to retain the "reasonable expectation of privacy" ruling from the seminal Katz v. United States decision. Under Alito's theory, suppression decisions would turn not on who owned property but on whether society currently recognizes that a person has an expectation that certain information would not be exposed to law enforcement. Alito almost always tries to help the prosecution, so his theory would often result in a ruling that no "search" occurred.

Justice Sotomayor sided with Justice Scalia's majority opinion, but her concurrence may be the most prescient part of the whole case. Proving that she is beginning to be the intellectual force on the Court that many predicted, Justice Sotomayor noted that both views may become more important in light of the rapid advance of technology in our modern day world. "GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail abouther familial, political, professional, religious, and sexual associations." She further notes that because it is so cheap to do, the police will resort to such secret electronic monitoring more and more. She ponders whether most people really expect that their government might track their daily movements.

Justice Sotomayor also ponders whether we should re-think the line of cases holding that people abandon their expectation of privacy when they turn property over to a third party. She notes that we expose vast quantities of private information when communicating with a bank, or even using our internet service provider to surf for a new restaurant. She doubts whether most Americans would believe they surrendered their privacy rights in this situation just because they agreed to the ISP's terms of service.

This is a fascinating decision with roots in the past but application for the present and future. We are glad to see the Supreme Court issue a decision that recognizes the importance of personal property rights, privacy, and the need to keep government in check.

Earlier this week, the Supreme Court granted certiorari in Davis v. United States. The Court will resolve a federal circuit court split: whether the good faith exception to the exclusionary rule applies to a search that is later ruled unconstitutional. This March, the Eleventh Circuit held in Davis that the exclusionary rule does not apply when the police conduct a search reasonably relying on well-settled precedent, even if that precedent is later overturned. We hope the Court reverses this decision.

In Davis, the defendant was a passenger in a routine traffic stop in Alabama. He gave the police officers a false name. When asked to exit the vehicle, Davis removed his jacket and left it in the car, then was taken toward a group of bystanders. The bystanders provided his real name, leading to Davis’s arrest for giving a false name. In the search incident to his arrest, the officers found a gun in the jacket, which was still in the car. Davis was convicted of possession of a firearm and sentenced to more than 18 years.

As we explained in this post, the Supreme Court decided Arizona v. Gant in April 2009. The Court held that police are authorized “to search a vehicle incident to a recent occupant’s arrest only when the arrestee is unsecured and within reaching distance of the passenger compartment at the time of the search,” unless some evidence related to the crime of arrest may be in the vehicle. This decision rendered the search in Davis unconstitutional.

In applying Gant to searches predating the decision, the Ninth and Tenth Circuits disagreed on whether the exclusionary rule must be applied to searches now rendered unconstitutional. The Eleventh Circuit joined the Tenth in holding that the good faith exception prevented exclusion of evidence from such searches. The Fifth Circuit has held similarly prior to Gant, but the Seventh Circuit was skeptical.

We hope the Supreme Court protects defendants’ constitutional rights and reverses the Eleventh Circuit’s decision.

The Eleventh Circuit’s opinion in Davis is available here.
The petition for certiorari is available here.
The brief in opposition is available here.

The United States Supreme Court announced last month that it will review a case involving the "exigent circumstances" exception to the Constitution's requirement that the police get a search warrant before conducting a search or seizing property. We regularly confront similar matters when we litigate federal cases here in Georgia, Alabama and Florida and when one of these cases is taken up to the U.S. Court of Appeals for the Eleventh Circuit. This case, Kentucky v. King, likely will clear up whether this particular exception to the warrant requirement can apply when the police themselves create the exigency that otherwise mandates that they act before getting a search warrant.

The police chased a suspected drug dealer into a hallway where he could have entered one of two doors. A strong smell of marijuana came from one of the doors. The officers knocked on that door and announced their presence, after which they heard sounds consistent with destruction of evidence. They then broke open the door, discovering drugs and the unfortunate Mr. King inside.

Our Constitution says that it is unreasonable to conduct a search and seizure unless a judicial officer has issued a warrant. Over the years, the courts have created so many exceptions to the warrant requirement that it looks more like Swiss cheese than a rule to protect privacy. The "exigent circumstances" exception means that the police get to break down doors without a warrant if there is some immediate need to act, for example when persons inside are destroying evidence, someone inside needs immediate help, or there is an immediate danger to the police coming from inside the residence. However, over the years the police have gotten smart and often create the exigent circumstance that lets them get around the warrant requirement. The courts have reacted to these situations in a variety of ways.

In Kentucky v. King the State lost in the lower courts when the Kentucky Supreme Court said that the officers should have reasonably anticipated that their knocking would goad those inside into making noise similar to destroying evidence, thus creating the very exigency that authorized the officers to enter without a warrant. The State explained in its Petition for a Writ of Certiorari that there are at least five different tests being applied by the various lower courts when dealing with similar situations.

We look forward to seeing how the U.S. Supreme Court rules, which likely will not occur until next year. The opinion below and briefs supporting and opposing the petition for certiorari are available here.

Last week in Rehberg v. Paulk, the Eleventh Circuit held that sending “emails to third parties constitute[s] a voluntary relinquishment of the right to privacy in that information.” In this case, the investigators subpoenaed the emails directly from the Internet Service Provider (ISP) through which Rehberg transmitted his messages. The Court held that he did not have a valid expectation of privacy in the email information, so he failed to state a Fourth Amendment violation.

This ruling might be a dangerous precedent, for several reasons. First, the Court of Appeals says that none of us has any privacy in our emails the moment we hit the ‘send’ button. Second, this means that the government can get our otherwise private messages from every ISP we use to connect us with the outside world. This ruling represents one more step towards a lack of privacy, and in favor of the government’s ability to intrude into our lives.

The opinion in Rehberg v. Paulk is here.
A lengthy analysis by Orin Kerr on why the Eleventh Circuit got this wrong is here at the Volokh Conspiracy.