GPS and the Fourth Amendment

               Did the United States Supreme Court really get it right in the new GPS/Fourth Amendment case, United States v. Jones?  And what is “it”?  The opinion is a fragmented affair that might cause more confusion than enlightenment, but for the facts of this case, the conviction was unanimously reversed, even if there was no unanimity regarding the rationale.

          Antoine Jones was suspected of being a drug dealer in the Washington, DC, area, so the cops furtively installed a GPS device on his car [and then replaced the batteries some time later] and monitored his movements 24 hours a day for 28 days.  This was done without a warrant.  Or more accurately, a warrant had been issued in Washington, but it ran out before the GPS was installed, and the installation was in Maryland.

          From monitoring his movements, the cops generated a 2000 page log, which included evidence that he [or the car!] visited a “stash house” where $850,000 and 97 kilos of cocaine were later found.  He was accordingly tried and convicted of a drug trafficking conspiracy and was sentenced to life in prison.  He had brought  a suppression motion in the trial court, alleging that the installation and monitoring of the GPS by the cops violated his Fourth Amendment rights, and that was denied.  The DC circuit court ruled that the conviction needed to be reversed because of the warrantless installation and monitoring of the GPS device.

          There emerged three schools of thought on the high court, the Scalia view that the Framers would have deemed the installation a trespass [for 4 justices, with Sotomayor joining for the result, focusing on the “effects” clause]; the Alito view that one might have a reasonable expectation of privacy that his movements would not be so microscopically analyzed and recorded and used in court [4 justices, focusing on later “privacy” rationales]; and the Sotomayor view that both the installation and the extended monitoring violated the Fourth Amendment privacy and effects standards and that we might have to rethink whether we lose that protection when communicated to third parties in this digital age [for only herself, but joining Scalia for a fifth vote on his effects rationale].

          So, there is the initial attachment school [Scalia], the extensive monitoring school [Alito], and the combined with expansion view [Sotomayor].  What is clear, though, is that all schools of thought, for this case, found that the Fourth Amendment was violated by the cops for not having obtained a warrant.

          What is not fleshed out, notwithstanding the professed “originalism” approach of Scalia, which was sharply and comically debated by Alito, is that the modern “proactive” constabulary which is all over the place, trying to justify its existence daily by playing “Gotcha!” on the public, hiding in the shadows and at intersections and in the bushes and at temporary check points to “find” crime to then suppress, is foreign to the intent of the Framers.

          The King had his proactive agents here, doing what our cops do, harassing, snooping, searching, seizing, arresting, and the Founding Fathers said “get out.”  That is the meaning of complaint number 10 of the Declaration of Independence: “He has erected a Multitude of new Officers, and sent hither Swarms of Officers to harass our People, and eat out their substance.”  Proactive constabulary was inconsistent with the regime of liberty being installed here, and it did not revisit our shores and streets until after the Civil War, during which cataclysm Lincoln proved that cries of “war” and “emergency” would invite rationalized erosion in constitutional limitations and would empower the executive at the expense of the other branches, and would expand “security” and “power” at the expense of liberty.

          So now, we have to invite and discover more searching assessments of how to invoke the Constitution to protect people’s liberties that are eroded by an unintended excrescence increasingly bursting forth on our body politic, the proactive constabulary.  That is, we need Scalia and Alito and Sotomayor in our courts because we no longer have Thomas Jefferson and James Madison in our collective souls.  We are a police state, and thank God the Courts are finally coming around to that understanding.

          And let’s face it, the cops have no trouble getting some obsequious and genuflecting magistrate to issue a warrant for virtually anything they want to do; they have just become so arrogant that they do not want to ask for permission and to put forth justifications for their depredations.  We need to get this system of liberty under control, or else our sloth will result in us losing control, and education about the founding premises of the Republic, and then a resolve to embrace those premises, is what is, but all that is, needed.