U.S. v. Jones can rightfully be seen as a win for the Fourth Amendment. It’s effects will be seen beyond that of Knotts and will serve as the main defense of 4A rights alongside Kyllo. Basically, Jones will serve the 4th, the way Heller served the 2nd. However, for Jones to truly be seen as a victory, it is going to require the sort of clarification that Heller needed in McDonald.
Why is Jones important? Well, for starters, the erosion of the 4th Amendment has consistently come at the hands of drug cases, so this was refreshing. But, what Jones provides us is the merger of two main tests to establish that a “search” has been conducted under the 4th Amendment. The primary accomplishment of Jones was in bringing the 4th Amendment into the 21st century and acknowledging that a search can be conducted with modern technology that does not create a physical intrusion into a protected space.
The first is the actual physical trespass. This is what Justice Scalia is referring to when he says, “At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”
The second is the reasonable expectation of privacy as first espoused in Katz. However, Scalia says that the, “reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test”
The concurrence by Sotamayor I think is a better win for civil libertarians. She suggests that the Katz reasonable-expectation-of-privacy test is sufficient, but not necessary for a “search” to be deemed. Scalia, in the majority opinion asserts that this can result in weaker protections than requiring both be met. I cannot think of an example where this may be the case, but I would be very interested in finding one.
In his concurrence, Justice Alito (along with Ginsburg, Breyer and Kagan) also accept the Katz reasonable-expectation-of-privacy test. He does point out a weakness in the test however. With new technologies come changing expectations of privacy. Jones asserts his reasonable expectation of privacy was violated, yet in a day where we carry a GPS in the form of a cell phone, and check into facebook when we go out, it is less likely that privacy would be expected.
Fortunately Justice Sotamayor has an answer for this, “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.” In other words, just because we let our facebook friends know where we are, doesn’t mean we desire the world, especially government agents, to know where we are.
Alito feels the solution to this issue is to enact legislative change. That is a nice concept in theory, but highly unlikely to achieve in practice. I would also charge that at any time there is a doubt, then benefit of said doubt goes to the restriction of government power. Again, Sotamayor: “I would also consider the appropriateness of entrusting to the Executive, in the absence of any over- sight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,'”
In the end, I was actually quite please with Sotamayor’s response. I was also very much upset with the way Scalia refused to provide the answer that will actually be needed in the future, especially as backscatter technology becomes more prevalent. The attachment of the GPS device to the car was indeed a physical intrusion, so the Court avoided answering the more important question of when the technology is used without a physical intrusion. Again, see backscatter technology. Scalia: “We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”
My response. Yes sir, yes there is! Not addressing this issue gives government agents the out they need to be able to avoid 4th Amendment scrutiny for years to come before we are fortunate (or unfortunate it may hold) enough to actually get that case back to SCOTUS. This is how Chicago thought they could flaunt Heller. The issue wasn’t addressed when it should have been. The Court consistently rules far too narrowly.
Okay! Did you make it through? If so, you get a video. If not, no Bill Withers for you!
