UNITED STATES v. JONES
Antoine Jones was arrested on Oct. 24, 2005, for drug possession after police attached a tracker to Jones's Jeep -- without judicial approval -- and used it to follow him for a month. A jury found Jones not guilty on all charges save for conspiracy, on which point jurors hung. District prosecutors, upset at the loss, re-filed a single count of conspiracy against Jones and his business partner, Lawrence Maynard. Jones owned the "Levels" nightclub in the District of Columbia. Jones and Maynard were then convicted, but a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled that the Supreme Court specifically stated in a 1983 case regarding the use of a beeper to track a suspect that the decision could not be used to justify 24-hour surveillance without a warrant.
Did the warrantless use of a tracking device on Jones's vehicle to monitor its movements on public streets violate Jones' Fourth Amendment rights?
Legal provision: Fourth Amendment
Yes. Justice Antonin Scalia delivered the opinion of the Court. The Court affirmed the judgment of the lower court, and held that the installation of a GPS tracking device on Jones' vehicle, without a warrant, constituted an unlawful search under the Fourth Amendment. The Court rejected the government's argument that there is no reasonable expectation of privacy in a person's movement on public thoroughfares and emphasized that the Fourth Amendment provided some protection for trespass onto personal property.
Justice Sonia Sotomayor wrote a concurring opinion, agreeing that the government had obtained information by usurping Jones’ property and by invading his privacy. However, she further reasoned that the Fourth Amendment was not only concerned with trespasses onto property. She stated that a Fourth Amendment search occurs whenever the government violates a subjective expectation of privacy that society recognizes as reasonable, which is particularly important in an era where physical intrusion is unnecessary to many forms of surveillance.
Justice Samuel Alito concurred in the judgment but criticized the framing of the question in terms of trespass to property. He believed that such a construction of the problem strained the language of the Fourth Amendment and that it would be better to analyze the case by determining whether the Government violated Jones' reasonable expectations of privacy.
NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. ANTOINE JONES
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[January 23, 2012]
Justice Scalia delivered the opinion of the Court.
We decide whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.I
In 2004 respondent Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Metropolitan Police Department task force. Officers employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’s cellular phone.
Based in part on information gathered from these sources, in 2005 the Government applied to the United States District Court for the District of Columbia for a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. A warrant issued, authorizing installation of the device in the District of Columbia and within 10 days.
On the 11th day, and not in the District of Columbia but in Maryland, 1 agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the 4-week period.
The Government ultimately obtained a multiple-count indictment charging Jones and several alleged co-conspirators with, as relevant here, conspiracy to distribute and possess with intent to distribute five kilograms or more of cocaine and 50 grams or more of cocaine base, in violation of 21 U. S. C. §§841 and 846. Before trial, Jones filed a motion to suppress evidence obtained through the GPS device. The District Court granted the motion only in part, suppressing the data obtained while the vehicle was parked in the garage adjoining Jones’s residence. 451 F. Supp. 2d 71, 88 (2006). It held the remaining data admissible, because “ ‘[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’ ” Ibid. (quoting United States v. Knotts, 460 U. S. 276, 281 (1983) ). Jones’s trial in October 2006 produced a hung jury on the conspiracy count.
In March 2007, a grand jury returned another indictment, charging Jones and others with the same conspiracy. The Government introduced at trial the same GPS-derived locational data admitted in the first trial, which connected Jones to the alleged conspirators’ stash house that contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base. The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.
The United States Court of Appeals for the District of Columbia Circuit reversed the conviction because of admission of the evidence obtained by warrantless use of the GPS device which, it said, violated the Fourth Amendment. United States v. Maynard, 615 F. 3d 544 (2010). The D. C. Circuit denied the Government’s petition for rehearing en banc, with four judges dissenting. 625 F. 3d 766 (2010). We granted certiorari, 564 U. S. ___ (2011).II A
The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977) . We hold that the Government’s installation of a GPS device on a target’s vehicle, 2 and its use of that device to monitor the vehicle’s movements, constitutes a “search.”
It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. Brower v. County of Inyo, 489 U. S. 593, 596 (1989) (quoting Boyd v. United States, 116 U. S. 616, 626 (1886) ). In that case, Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:
“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.
The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th century. Kyllo v. United States, 533 U. S. 27, 31 (2001) ; Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816 (2004). Thus, in Olmstead v. United States, 277 U. S. 438 (1928) , we held that wiretaps attached to telephone wires on the public streets did not constitute a Fourth Amendment search because “[t]here was no entry of the houses or offices of the defendants,” id., at 464.
Our later cases, of course, have deviated from that exclusively property-based approach. In Katz v. United States, 389 U. S. 347, 351 (1967) , we said that “the Fourth Amendment protects people, not places,” and found a violation in attachment of an eavesdropping device to a public telephone booth. Our later cases have applied the analysis of Justice Harlan’s concurrence in that case, which said that a violation occurs when government officers violate a person’s “reasonable expectation of privacy,” id., at 360. See, e.g., Bond v. United States, 529 U. S. 334 (2000) ; California v. Ciraolo, 476 U. S. 207 (1986) ; Smith v. Maryland, 442 U. S. 735 (1979) .
The Government contends that the Harlan standard shows that no search occurred here, since Jones had no “reasonable expectation of privacy” in the area of the Jeep accessed by Government agents (its underbody) and in the locations of the Jeep on the public roads, which were visible to all. But we need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.” Kyllo, supra, at 34. As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates. 3 Katz did not repudiate that understanding. Less than two years later the Court upheld defendants’ contention that the Government could not introduce against them conversations between other people obtained by warrantless placement of electronic surveillance devices in their homes. The opinion rejected the dissent’s contention that there was no Fourth Amendment violation “unless the conversational privacy of the homeowner himself is invaded.” 4 Alderman v. United States, 394 U. S. 165, 176 (1969) . “[W]e [do not] believe that Katz, by holding that the Fourth Amendment protects persons and their private conversations, was intended to withdraw any of the protection which the Amendment extends to the home . . . .” Id., at 180.
More recently, in Soldal v. Cook County, 506 U. S. 56 (1992) , the Court unanimously rejected the argument that although a “seizure” had occurred “in a ‘technical’ sense” when a trailer home was forcibly removed, id., at 62, no Fourth Amendment violation occurred because law enforcement had not “invade[d] the [individuals’] privacy,” id., at 60. Katz, the Court explained, established that “property rights are not the sole measure of Fourth Amendment violations,” but did not “snuf[f] out the previously recognized protection for property.” 506 U. S., at 64. As Justice Brennan explained in his concurrence in Knotts, Katz did not erode the principle “that, when the Government does engage in physical intrusion of a constitutionally protected area in order to obtain information, that intrusion may constitute a violation of the Fourth Amendment.” 460 U. S., at 286 (opinion concurring in judgment). We have embodied that preservation of past rights in our very definition of “reasonable expectation of privacy” which we have said to be an expectation “that has a source outside of the Fourth Amendment, either by reference to concepts of real or personal property law or to understandings that are recognized and permitted by society.” Minnesota v. Carter, 525 U. S. 83, 88 (1998) (internal quotation marks omitted). Katz did not narrow the Fourth Amendment’s scope. 5
The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. It relies principally on two cases in which we rejected Fourth Amendment challenges to “beepers,” electronic tracking devices that represent another form of electronic monitoring. The first case, Knotts, upheld against Fourth Amendment challenge the use of a “beeper” that had been placed in a container of chloroform, allowing law enforcement to monitor the location of the container. 460 U. S., at 278. We said that there had been no infringement of Knotts’ reasonable expectation of privacy since the information obtained—the location of the automobile carrying the container on public roads, and the location of the off-loaded container in open fields near Knotts’ cabin—had been voluntarily conveyed to the public. 6 Id., at 281–282. But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. The beeper had been placed in the container before it came into Knotts’ possession, with the consent of the then-owner. 460 U. S., at 278. Knotts did not challenge that installation, and we specifically declined to consider its effect on the Fourth Amendment analysis. Id., at 279, n. Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it.
The second “beeper” case, United States v. Karo, 468 U. S. 705 (1984) , does not suggest a different conclusion. There we addressed the question left open by Knotts, whether the installation of a beeper in a container amounted to a search or seizure. 468 U. S., at 713. As in Knotts, at the time the beeper was installed the container belonged to a third party, and it did not come into possession of the defendant until later. 468 U. S., at 708. Thus, the specific question we considered was whether the installation “with the consent of the original owner constitute[d] a search or seizure . . . when the container is delivered to a buyer having no knowledge of the presence of the beeper.” Id., at 707 (emphasis added). We held not. The Government, we said, came into physical contact with the container only before it belonged to the defendant Karo; and the transfer of the container with the unmonitored beeper inside did not convey any information and thus did not invade Karo’s privacy. See id., at 712. That conclusion is perfectly consistent with the one we reach here. Karo accepted the container as it came to him, beeper and all, and was therefore not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location. Cf. On Lee v. United States, 343 U. S. 747 –752 (1952) (no search or seizure where an informant, who was wearing a concealed microphone, was invited into the defendant’s business). Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing.
The Government also points to our exposition in New York v. Class, 475 U. S. 106 (1986) , that “[t]he exterior of a car . . . is thrust into the public eye, and thus to examine it does not constitute a ‘search.’ ” Id., at 114. That statement is of marginal relevance here since, as the Government acknowledges, “the officers in this case did more than conduct a visual inspection of respondent’s vehicle,” Brief for United States 41 (emphasis added). By attaching the device to the Jeep, officers encroached on a protected area. In Class itself we suggested that this would make a difference, for we concluded that an officer’s momentary reaching into the interior of a vehicle did constitute a search. 7 475 U. S., at 114–115.
Finally, the Government’s position gains little support from our conclusion in Oliver v. United States, 466 U. S. 170 (1984) , that officers’ information-gathering intrusion on an “open field” did not constitute a Fourth Amendment search even though it was a trespass at common law, id., at 183. Quite simply, an open field, unlike the curtilage of a home, see United States v. Dunn, 480 U. S. 294, 300 (1987) , is not one of those protected areas enumerated in the Fourth Amendment. Oliver, supra, at 176–177. See also Hester v. United States, 265 U. S. 57, 59 (1924) . The Government’s physical intrusion on such an area—unlike its intrusion on the “effect” at issue here—is of no Fourth Amendment significance. 8B
The concurrence begins by accusing us of applying “18th-century tort law.” Post, at 1. That is a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed.
The concurrence faults our approach for “present[ing] particularly vexing problems” in cases that do not involve physical contact, such as those that involve the transmission of electronic signals. Post, at 9. We entirely fail to understand that point. For unlike the concurrence, which would make Katz the exclusive test, we do not make trespass the exclusive test. Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.
In fact, it is the concurrence’s insistence on the exclusivity of the Katz test that needlessly leads us into “particularly vexing problems” in the present case. This Court has to date not deviated from the understanding that mere visual observation does not constitute a search. See Kyllo, 533 U. S., at 31–32. We accordingly held in Knotts that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” 460 U. S., at 281. Thus, even assuming that the concurrence is correct to say that “[t]raditional surveillance” of Jones for a 4-week period “would have required a large team of agents, multiple vehicles, and perhaps aerial assistance,” post, at 12, our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.
And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that “relatively short-term monitoring of a person’s movements on public streets” is okay, but that “the use of longer term GPS monitoring in investigations of most offenses” is no good. Post, at 13 (emphasis added). That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extraordinary offens[e]” which may permit longer observation. See post, at 13–14. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? 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.III
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and indeed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited. See Sprietsma v. Mercury Marine, 537 U. S. 51 , n. 4 (2002).* * *
The judgment of the Court of Appeals for the D. C. Circuit is affirmed.
It is so ordered.
1 In this litigation, the Government has conceded noncompliance with the warrant and has argued only that a warrant was not required. United States v. Maynard, 615 F. 3d 544, 566, n. (CADC 2010).
2 As we have noted, the Jeep was registered to Jones’s wife. The Government acknowledged, however, that Jones was “the exclusive driver.” Id., at 555, n. (internal quotation marks omitted). If Jones was not the owner he had at least the property rights of a bailee. The Court of Appeals concluded that the vehicle’s registration did not affect his ability to make a Fourth Amendment objection, ibid., and the Government has not challenged that determination here. We therefore do not consider the Fourth Amendment significance of Jones’s status.
3 Justice Alito’s concurrence (hereinafter concurrence) doubts the wisdom of our approach because “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” Post, at 3 (opinion concurring in judgment). But in fact it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements. Ibid. There is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled. In any case, it is quite irrelevant whether there was an 18th-century analog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a “search” within the original meaning of the Fourth Amendment. Where, as here, the Government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.
4 Thus, the concurrence’s attempt to recast Alderman as meaning that individuals have a “legitimate expectation of privacy in all conversations that [take] place under their roof,” post, at 6–7, is foreclosed by the Court’s opinion. The Court took as a given that the homeowner’s “conversational privacy” had not been violated.
5 The concurrence notes that post-Katz we have explained that “ ‘an actual trespass is neither necessary nor sufficient to establish a constitutional violation.’ ” Post, at 6 (quoting United States v. Karo, 468 U. S. 705, 713 (1984) ). That is undoubtedly true, and undoubtedly irrelevant. Karo was considering whether a seizure occurred, and as the concurrence explains, a seizure of property occurs, not when there is a trespass, but “when there is some meaningful interference with an individual’s possessory interests in that property.” Post, at 2 (internal quotation marks omitted). Likewise with a search. Trespass alone does not qualify, but there must be conjoined with that what was present here: an attempt to find something or to obtain information. Related to this, and similarly irrelevant, is the concurrence’s point that, if analyzed separately, neither the installation of the device nor its use would constitute a Fourth Amendment search. See ibid. Of course not. A trespass on “houses” or “effects,” or a Katz invasion of privacy, is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy.
6 Knotts noted the “limited use which the government made of the signals from this particular beeper,” 460 U. S., at 284; and reserved the question whether “different constitutional principles may be applicable” to “dragnet-type law enforcement practices” of the type that GPS tracking made possible here, ibid.
7 The Government also points to Cardwell v. Lewis, 417 U. S. 583 (1974) , in which the Court rejected the claim that the inspection of an impounded vehicle’s tire tread and the collection of paint scrapings from its exterior violated the Fourth Amendment. Whether the plural-ity said so because no search occurred or because the search was rea-sonable is unclear. Compare id., at 591 (opinion of Blackmun, J.) (“[W]e fail to comprehend what expectation of privacy was infringed”), with id., at 592 (“Under circumstances such as these, where probable cause exists, a warrantless examination of the exterior of a car is not unreasonable . . . ”).
8 Thus, our theory is not that the Fourth Amendment is concerned with “any technical trespass that led to the gathering of evidence.” Post, at 3 (Alito, J., concurring in judgment) (emphasis added). The Fourth Amendment protects against trespassory searches only with regard to those items (“persons, houses, papers, and effects”) that it enumerates. The trespass that occurred in Oliver may properly be understood as a “search,” but not one “in the constitutional sense.” 466 U. S., at 170, 183.
SUPREME COURT OF THE UNITED STATES
UNITED STATES, PETITIONER v. ANTOINE JONES
on writ of certiorari to the united states court of appeals for the district of columbia circuit
[January 23, 2012]
Justice Alito, with whom Justice Ginsburg, Justice Breyer, and Justice Kagan join, concurring in the judgment.
This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Po-sitioning System (GPS) device to monitor a vehicle’s move-ments for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device 1 to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. 2 And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. Ante, at 3–4.
This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.
I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.I A
The Fourth Amendment prohibits “unreasonable searches and seizures,” and the Court makes very little effort to explain how the attachment or use of the GPS device fits within these terms. The Court does not contend that there was a seizure. A seizure of property occurs when there is “some meaningful interference with an in-dividual’s possessory interests in that property,” United States v. Jacobsen, 466 U. S. 109, 113 (1984) , and here there was none. Indeed, the success of the surveillance technique that the officers employed was dependent on the fact that the GPS did not interfere in any way with the operation of the vehicle, for if any such interference had been detected, the device might have been discovered.
The Court does claim that the installation and use of the GPS constituted a search, see ante, at 3–4, but this con-clusion is dependent on the questionable proposition that these two procedures cannot be separated for purposes of Fourth Amendment analysis. If these two procedures are analyzed separately, it is not at all clear from the Court’s opinion why either should be regarded as a search. It is clear that the attachment of the GPS device was not itself a search; if the device had not functioned or if the officers had not used it, no information would have been obtained. And the Court does not contend that the use of the device constituted a search either. On the contrary, the Court accepts the holding in United States v. Knotts, 460 U. S. 276 (1983) , that the use of a surreptitiously planted electronic device to monitor a vehicle’s movements on public roads did not amount to a search. See ante, at 7.
The Court argues—and I agree—that “we must ‘assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.’ ” Ante, at 5 (quoting Kyllo v. United States, 533 U. S. 27 , 34 (2001)). But it is almost impossible to think of late18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner? 3 ) The Court’s theory seems to be that the concept of a search, as originally un-derstood, comprehended any technical trespass that led to the gathering of evidence, but we know that this is in-correct. At common law, any unauthorized intrusion on private property was actionable, see Prosser & Keeton 75, but a trespass on open fields, as opposed to the “curtilage” of a home, does not fall within the scope of the Fourth Amendment because private property outside the curtilage is not part of a “hous[e]” within the meaning of the Fourth Amendment. See Oliver v. United States, 466 U. S. 170 (1984) ; Hester v. United States, 265 U. S. 57 (1924) .B
The Court’s reasoning in this case is very similar to that in the Court’s early decisions involving wiretapping and electronic eavesdropping, namely, that a technical trespass followed by the gathering of evidence constitutes a search. In the early electronic surveillance cases, the Court concluded that a Fourth Amendment search occurred when private conversations were monitored as a result of an “unauthorized physical penetration into the premises occupied” by the defendant. Silverman v. United States, 365 U. S. 505, 509 (1961) . In Silverman, police officers listened to conversations in an attached home by inserting a “spike mike” through the wall that this house shared with the vacant house next door. Id., at 506. This procedure was held to be a search because the mike made contact with a heating duct on the other side of the wall and thus “usurp[ed] . . . an integral part of the premises.” Id., at 511.
By contrast, in cases in which there was no trespass, it was held that there was no search. Thus, in Olmstead v. United States, 277 U. S. 438 (1928) , the Court found that the Fourth Amendment did not apply because “[t]he taps from house lines were made in the streets near the houses.” Id., at 457. Similarly, the Court concluded that no search occurred in Goldman v. United States, 316 U. S. 129, 135 (1942) , where a “detectaphone” was placed on the outer wall of defendant’s office for the purpose of overhearing conversations held within the room.
This trespass-based rule was repeatedly criticized. In Olmstead, Justice Brandeis wrote that it was “immaterial where the physical connection with the telephone wires was made.” 277 U. S., at 479 (dissenting opinion). Al-though a private conversation transmitted by wire did not fall within the literal words of the Fourth Amendment, he argued, the Amendment should be understood as prohibiting “every unjustifiable intrusion by the government upon the privacy of the individual.” Id., at 478. See also, e.g., Silverman, supra, at 513 (Douglas, J., concurring) (“The concept of ‘an unauthorized physical penetration into the premises,’ on which the present decision rests seems to me beside the point. Was not the wrong . . . done when the intimacies of the home were tapped, recorded, or revealed? The depth of the penetration of the electronic device—even the degree of its remoteness from the inside of the house—is not the measure of the injury”); Goldman, supra, at 139 (Murphy, J., dissenting) (“[T]he search of one’s home or office no longer requires physical entry, for science has brought forth far more effective devices for the invasion of a person’s privacy than the direct and obvious methods of oppression which were detested by our forebears and which inspired the Fourth Amendment”).
Katz v. United States, 389 U. S. 347 (1967) , finally did away with the old approach, holding that a trespass was not required for a Fourth Amendment violation. Katz in-volved the use of a listening device that was attached to the outside of a public telephone booth and that allowed police officers to eavesdrop on one end of the target’s phone conversation. This procedure did not physically intrude on the area occupied by the target, but the Katz Court, “repudiate[ed]” the old doctrine, Rakas v. Illinois, 439 U. S. 128, 143 (1978) , and held that “[t]he fact that the electronic device employed . . . did not happen to penetrate the wall of the booth can have no constitutional significance,” 389 U. S., at 353 (“[T]he reach of th[e] [Fourth] Amendment cannot turn upon the presence or absence of a physical intrusion into any given enclosure”); see Rakas, supra, at 143 (describing Katz as holding that the “ca-pacity to claim the protection for the Fourth Amendment depends not upon a property right in the invaded place but upon whether the person who claims the protection of the Amendment has a legitimate expectation of privacy in the invaded place”); Kyllo, supra, at 32 (“We have since decoupled violation of a person’s Fourth Amendment rights from trespassory violation of his property”). What mattered, the Court now held, was whether the conduct at issue “violated the privacy upon which [the defendant] justifiably relied while using the telephone booth.” Katz, supra, at 353.
Under this approach, as the Court later put it when addressing the relevance of a technical trespass, “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.” United States v. Karo, 468 U. S. 705, 713 (1984) (emphasis added). Ibid. (“Compar[ing] Katz v. United States, 389 U. S. 347 (1967) (no trespass, but Fourth Amendment violation), with Oliver v. United States, 466 U. S. 170 (1984) (trespass, but no Fourth Amendment violation)”). In Oliver, the Court wrote:
“The existence of a property right is but one element in determining whether expectations of privacy are legitimate. ‘The premise that property interests control the right of the Government to search and seize has been discredited.’ Katz, 389 U. S., at 353, (quoting Warden v. Hayden, 387 U. S. 294, 304 (1967) ; some internal quotation marks omitted).” 466 U. S., at 183.II
The majority suggests that two post-Katz decisions—Soldal v. Cook County, 506 U. S. 56 (1992) , and Alderman v. United States, 394 U. S. 165 (1969) —show that a technical trespass is sufficient to establish the existence of a search, but they provide little support.
In Soldal, the Court held that towing away a trailer home without the owner’s consent constituted a seizure even if this did not invade the occupants’ personal privacy. But in the present case, the Court does not find that there was a seizure, and it is clear that none occurred.
In Alderman, the Court held that the Fourth Amendment rights of homeowners were implicated by the use of a surreptitiously planted listening device to monitor third-party conversations that occurred within their home. See 394 U. S., at 176–180. Alderman is best understood to mean that the homeowners had a legitimate expectation of privacy in all conversations that took place under their roof. See Rakas, 439 U. S., at 144, n. 12 (citing Alderman for the proposition that “the Court has not altogether abandoned use of property concepts in determining the presence or absence of the privacy interests protected by that Amendment”); 439 U. S., at 153 (Powell, J., concurring) (citing Alderman for the proposition that “property rights reflect society’s explicit recognition of a person’s au-thority to act as he wishes in certain areas, and therefore should be considered in determining whether an individual’s expectations of privacy are reasonable); Karo, supra, at 732 (Stevens, J., concurring in part and dissenting in part) (citing Alderman in support of the proposition that “a homeowner has a reasonable expectation of privacy in the contents of his home, including items owned by others”).
In sum, the majority is hard pressed to find support in post-Katz cases for its trespass-based theory.III
Disharmony with a substantial body of existing case law is only one of the problems with the Court’s approach in this case.
I will briefly note four others. First, the Court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). Attaching such an object is generally regarded as so trivial that it does not provide a basis for recovery under modern tort law. See Prosser & Keeton §14, at 87 (harmless or trivial contact with personal property not actionable); D. Dobbs, Law of Torts 124 (2000) (same). But under the Court’s reasoning, this conduct may violate the Fourth Amendment. By contrast, if long-term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car—the Court’s theory would provide no protection.
Second, the Court’s approach leads to incongruous results. If the police attach a GPS device to a car and use the device to follow the car for even a brief time, under the Court’s theory, the Fourth Amendment applies. But if the police follow the same car for a much longer period using unmarked cars and aerial assistance, this tracking is not subject to any Fourth Amendment constraints.
In the present case, the Fourth Amendment applies, the Court concludes, because the officers installed the GPS device after respondent’s wife, to whom the car was registered, turned it over to respondent for his exclusive use. See ante, at 8. But if the GPS had been attached prior to that time, the Court’s theory would lead to a different result. The Court proceeds on the assumption that respondent “had at least the property rights of a bailee,” ante, at 3, n. 2, but a bailee may sue for a trespass to chattel only if the injury occurs during the term of the bailment. See 8A Am. Jur. 2d, Bailment §166, pp. 685–686 (2009). So if the GPS device had been installed before respondent’s wife gave him the keys, respondent would have no claim for trespass—and, presumably, no Fourth Amendment claim either.
Third, under the Court’s theory, the coverage of the Fourth Amendment may vary from State to State. If the events at issue here had occurred in a community property State 4 or a State that has adopted the Uniform Marital Property Act, 5 respondent would likely be an owner of the vehicle, and it would not matter whether the GPS was installed before or after his wife turned over the keys. In non-community-property States, on the other hand, the registration of the vehicle in the name of respondent’s wife would generally be regarded as presumptive evidence that she was the sole owner. See 60 C. J. S., Motor Vehicles §231, pp. 398–399 (2002); 8 Am. Jur. 2d, Automobiles §1208, pp. 859–860 (2007).
Fourth, the Court’s reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels? Trespass to chattels has traditionally required a physical touching of the property. See Restatement (Second) of Torts §217 and Comment e (1963 and 1964); Dobbs, supra, at 123. In recent years, courts have wrestled with the application of this old tort in cases involving unwanted electronic contact with computer systems, and some have held that even the transmission of electrons that occurs when a communication is sent from one computer to another is enough. See, e.g., CompuServe, Inc. v. Cyber Promotions, Inc. 962 F. Supp. 1015, 1021 (SD Ohio 1997); Thrifty-Tel, Inc. v. Bezenek, 46 Cal. App. 4th 1559, 1566, n. 6 (1996). But may such decisions be followed in applying the Court’s trespass theory? Assuming that what matters under the Court’s theory is the law of trespass as it existed at the time of the adoption of the Fourth Amendment, do these recent decisions represent a change in the law or simply the application of the old tort to new situations?IV A
The Katz expectation-of-privacy test avoids the problems and complications noted above, but it is not without its own difficulties. It involves a degree of circularity, see Kyllo, 533 U. S., at 34, and judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks. See Minnesota v. Carter, 525 U. S. 83, 97 (1998) (Scalia, J., concurring). In addition, the Katz test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable. 6
On the other hand, concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately happened with respect to wiretapping. After Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute, see 18 U. S. C. §§2510–2522 (2006 ed. and Supp. IV), and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law. 7 In an ironic sense, although Katz overruled Olmstead, Chief Justice Taft’s suggestion in the latter case that the regulation of wiretapping was a matter better left for Congress, see 277 U. S., at 465–466, has been borne out.B
Recent years have seen the emergence of many new devices that permit the monitoring of a person’s movements. In some locales, closed-circuit television video monitoring is becoming ubiquitous. On toll roads, automatic toll collection systems create a precise record of the movements of motorists who choose to make use of that convenience. Many motorists purchase cars that are equipped with devices that permit a central station to ascertain the car’s location at any time so that roadside assistance may be provided if needed and the car may be found if it is stolen.
Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users—and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States. 8 For older phones, the accuracy of the location information depends on the den-sity of the tower network, but new “smart phones,” which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone’s location and speed of movement and can then report back real-time traffic conditions after combining (“crowdsourcing”) the speed of all such phones on any particular road. 9 Similarly, phone-location-tracking services are offered as “social” tools, allowing consumers to find (or to avoid) others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person’s expectations about the privacy of his or her daily movements.V
In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. 10 Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap. In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. See, e.g., Kerr, 102 Mich. L. Rev., at 805–806. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.
To date, however, Congress and most States have not enacted statutes regulating the use of GPS tracking technology for law enforcement purposes. The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.
Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark. Other cases may present more difficult questions. But where uncertainty exists with respect to whether a certain period of GPS surveil lance is long enough to constitute a Fourth Amendment search, the police may always seek a warrant. 11 We also need not consider whether prolonged GPS monitoring in the context of investigations involving extraordinary offenses would similarly intrude on a constitutionally protected sphere of privacy. In such cases, long-term tracking might have been mounted using previously available techniques.* * *
For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment. I therefore agree with the majority that the decision of the Court of Appeals must be affirmed.
1 Although the record does not reveal the size or weight of the device used in this case, there is now a device in use that weighs two ounces and is the size of a credit card. Tr. of Oral Arg. 27.
2 At common law, a suit for trespass to chattels could be maintained if there was a violation of “the dignitary interest in the inviolability of chattels,” but today there must be “some actual damage to the chattel before the action can be maintained.” W. Keeton, D. Dobbs, R. Keeton, & D. Owen, Prosser & Keeton on Law of Torts 87 (5th ed. 1984) (hereinafter Prosser & Keeton). Here, there was no actual damage to the vehicle to which the GPS device was attached.
3 The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both—not to mention a constable with incredible fortitude and patience.
4 See, e.g., Cal. Family Code Ann. §760 (West 2004).
5 See Uniform Marital Property Act §4, 9A U. L. A. 116 (1998).
6 See, e.g., NPR, The End of Privacy http://www.npr.org/series/114250076/the-end-of-privacy (all Internet materials as visited Jan. 20, 2012, and available in Clerk of Court’s case file); Time Magazine, Everything About You Is Being Tracked—Get Over It, Joel Stein, Mar. 21, 2011, Vol. 177, No. 11.
7 See Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 850–851 (2004) (hereinafter Kerr).
8 See CTIA Consumer Info, 50 Wireless Quick Facts, http://www.ctia.org/consumer_info/index.cfm/AID/10323.
9 See, e.g., The bright side of sitting in traffic: Crowdsourcing road congestion data, Google Blog, http://googleblog.blogspot.com/2009/08/bright-side-of-sitting-in-traffic.html.
10 Even with a radio transmitter like those used in United States v. Knotts, 460 U. S. 276 (1983) , or United States v. Karo, 468 U. S. 705 (1984) , such long-term surveillance would have been exceptionally demanding. The beepers used in those cases merely “emit[ted] periodic signals that [could] be picked up by a radio receiver.” Knotts, 460 U.S., at 277. The signal had a limited range and could be lost if the police did not stay close enough. Indeed, in Knotts itself, officers lost the signal from the beeper, and only “with the assistance of a monitoring device located in a helicopter [was] the approximate location of the signal . . . picked up again about one hour later.” Id., at 278.
11 In this case, the agents obtained a warrant, but they did not comply with two of the warrant’s restrictions: They did not install the GPS device within the 10-day period required by the terms of the warrant and by Fed. Rule Crim. Proc. 41(e)(2)(B)(i), and they did not install the GPS device within the District of Columbia, as required by the terms of the warrant and by 18 U. S. C. §3117(a) and Rule 41(b)(4). In the courts below the Government did not argue, and has not argued here, that the Fourth Amendment does not impose these precise restrictions and that the violation of these restrictions does not demand the suppression of evidence obtained using the tracking device. See, e.g., United States v. Gerber, 994 F. 2d 1556, 1559–1560 (CA11 1993); United States v. Burke, 517 F. 2d 377, 386–387 (CA2 1975). Because it was not raised, that question is not before us.
ORAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We'll hear argument first this morning in Case 10-1259, United States v. Jones.
Mr. Dreeben: Mr. Chief Justice, and may it please the Court:
Since this Court's decision in Katz v. United States, the Court has recognized a basic dichotomy under the Fourth Amendment.
What a person seeks to preserve as private in the enclave of his own home or in a private letter or inside of his vehicle when he is traveling is a subject of Fourth Amendment protection.
But what he reveals to the world, such as his movements in a car on a public roadway, is not.
In Knotts v. United States, this Court applied that principle to hold that visual and beeper surveillance of a vehicle traveling on the public roadways infringed no Fourth Amendment expectation of privacy.
Chief Justice John G. Roberts: Knotts, though, seems to me much more like traditional surveillance.
You're following the car and the beeper just helps you follow it from a -- from a slightly greater distance.
That was 30 years ago.
The technology is very different and you get a lot more information from the GPS surveillance than you do from following a beeper.
Mr. Dreeben: The technology is different, Mr. Chief Justice, but a crucial fact in Knotts that shows that this was not simply amplified visual surveillance is that the officers actually feared detection in Knotts as the car crossed from Minnesota to Wisconsin.
The driver began to do certain U-turns and the police broke off visual surveillance.
They lost track of the car for a full hour.
They only were able to discover it by having a beeper receiver in a helicopter that detected the beeps from the radio transmitter in the can of chloroform.
Chief Justice John G. Roberts: But that's a good example of the change in technology.
That's a lot of work to follow the car.
They've got to listen to the beeper; when they lose it they have got to call in the helicopter.
Here they just sit back in the station and they -- they push a button whenever they want to find out where the car is.
They look at data from a month and find out everywhere it's been in the past month.
That -- that seems to me dramatically different.
Mr. Dreeben: But it doesn't expose anything, Mr. Chief Justice, that isn't already exposed to public view for anyone who wanted to watch, and that was the crucial principle that the Court applied--
Justice Anthony Kennedy: Well, under that rationale, could you put a beeper surreptitiously on the man's overcoat or sport coat?
Mr. Dreeben: --Probably not, Justice Kennedy; and the reason is that this Court in Karo v. United States -- United States v. Karo -- specifically distinguished the possibility of following a car on a public roadways from determining the location of an object in a place where a person has a reasonable expectation of privacy.
Justice Anthony Kennedy: Oh -- oh, no.
This is special device.
It measures only streets and public elevators and public buildings.
Mr. Dreeben: In that event, Justice Kennedy, there is a serious question about whether the installation of such a device would implicate either a search or a seizure.
But if it did not, the public movements of somebody do not implicate a seizure.
Justice Anthony Kennedy: And on that latter point, you might just be aware that I have serious reservations that there wasn't -- that there -- about the way in which this beeper was installed.
But you can get to that at -- at your convenience.
Justice Antonin Scalia: Mr. Dreeben, I'd like to get to it now.
Mr. Dreeben: Happy to, Your Honor.
Justice Antonin Scalia: I have to give a little prologue to my question.
When -- when wiretapping first came before this Court, we held that it was not a violation of the Fourth Amendment because the Fourth Amendment says that the --
"the people shall be secured in their persons, houses, papers and effects against unreasonable searches and seizures; and wiretapping just picked up conversations. "
"That's not persons, houses, papers and effects. "
Later on, we reversed ourselves and, as you mentioned, Katz established the new criterion, which is, is there an invasion of privacy?
Does -- are you obtaining information that a person had a reasonable expectation to be kept private?
I think that was wrong.
I don't think that was the original meaning of the Fourth Amendment.
But nonetheless it's been around for so long, we are not going to overrule that.
However, it is one thing to add that privacy concept to the Fourth Amendment as it originally existed and it is quite something else to use that concept to narrow the Fourth Amendment from what it originally meant.
And it seems to me that when that device is installed against the will of the owner of the car on the car, that is unquestionably a trespass and thereby rendering the owner of the car not secure in his effects -- the car is one of his effects -- against an unreasonable search and seizure.
It is attached to the car against his will, and it is a search because what it obtains is the location of that car from there forward.
Now, why -- why isn't that correct?
Do you deny that it's a trespass?
Mr. Dreeben: It may be a technical trespass, but it was equally a technical trespass in the United States v. Karo when a can of ether was transferred to somebody that had -- and it had a radio transmitter--
Justice Anthony Kennedy: Well, but the owner of the can at the time it was installed consented, and that is not this case.
There is no consent by the owner of the property to which this device was affixed.
In fact, it was done, as Justice Scalia indicated, surreptitiously.
Mr. Dreeben: --But there was no consent to the owner of the can once he acquired it to have it contain a foreign item installed by the government.
Justice Antonin Scalia: Well, that's too bad.
That doesn't make it a trespass.
Mr. Dreeben: Well, this Court thought that it--
Justice Antonin Scalia: --It may be a sneaky thing to do, but -- but every sneaky thing is not a trespass.
Mr. Dreeben: --Well, this Court thought that it was a technical trespass in Karo and said that made no difference because the purpose of the Fourth Amendment is to protect privacy interests and meaningful interferences with possessory interests, not to cover all technical trespasses.
And the case that I--
Justice Antonin Scalia: So we've narrowed the Fourth Amendment?
Mr. Dreeben: --Well, I think the Court--
Justice Antonin Scalia: So the -- the privacy rationale doesn't expand it, but narrows it in some respects.
Mr. Dreeben: --It changes it, Justice Scalia.
And I think the case that most clearly illustrates the distinction between trespass and Fourth Amendment protection is Oliver v. United States, the case that reaffirmed the open fields doctrine.
In that case, there was absolutely no doubt that the police committed a trespass under local law.
They entered, they crossed fences, they ignored big "no trespassing" signs; and this Court held that the interests that are protected by trespass law are distinct from the interests protected by the Fourth Amendment.
Justice Antonin Scalia: Undoubtedly, but the rationale of that case was that it was not an unreasonable--
Mr. Dreeben: No, the rationale was that--
Justice Antonin Scalia: --it was not an unreasonable search.
Mr. Dreeben: --there was no search, Justice Scalia.
The rationale of that case was that open fields are not among the things that are protected by the Fourth Amendment.
And the Court was very specifically focused on the distinction between trespass law and Fourth Amendment law.
Chief Justice John G. Roberts: You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month?
You think you're entitled to do that under your theory?
Mr. Dreeben: The justices of this Court?
Chief Justice John G. Roberts: Yes.
Mr. Dreeben: Under our theory and under this Court's cases, the justices of this Court when driving on public roadways have no greater expectation--
Chief Justice John G. Roberts: So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?
Mr. Dreeben: --Well, equally, Mr. Chief Justice, if the FBI wanted to it could put its team of surveillance agents around the clock on any individual and follow that individual's movements as they went around on the public streets and they would thereby gather--
Justice Samuel Alito: Well, that seems to get -- to me to get to what's really involved here, the issue of whether there is a technical trespass or not is potentially a ground for deciding this particular case, but it seems to me the heart of the problem that's presented by this case and will be presented by other cases involving new technology is that in the pre-computer, pre-Internet age much of the privacy -- I would say most of the privacy -- that people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information.
But with computers, it's now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets, information that was made available to the public.
If -- if this case is decided on the ground that there was a technical trespass, I don't have much doubt that in the near future it will be probable -- I think it's possible now in many instances -- for law enforcement to monitor people's movements on -- on public streets without committing a technical trespass.
So how do we deal with this?
Do we just say, well, nothing is changed, so that all the information that people expose to the public -- is, is fair game?
There is no -- there is no search or seizure when that is -- when that is obtained, because there isn't a reasonable expectation of privacy?
But isn't there a real change in -- in this regard?
Mr. Dreeben: --I don't think, Justice Alito, that there is a particularly dramatic change in this case from what went on in the Karo and the Knotts cases.
It is possible to envision broader advances in technology that would allow more public information to be amassed and put into computer systems.
But I think that the remedy for that, if this Court agrees with the principles in Knotts and Karo and applies them to this case, the remedy is through legislation, just as when the Court held that amassing pen register data, all of the numbers that you dial on your telephone, the lengths of the times of the calls.
The Court was confronted in that case with Justice Stewart's view in dissent--
Justice Ruth Bader Ginsburg: But it -- it is a third party involved in the telephone -- in the pen register case.
And here, it's the police.
Essentially, I think you answered the question that the government's position would mean that any of us could be monitored whenever we leave our -- our homes, so the only thing secure is the home.
Is -- I mean, this is -- that is the end point of your argument, that an electronic device, as long as it's not used inside the house, is okay.
Mr. Dreeben: --Well, we are talking here about monitoring somebody's movements in public.
We are not talking about monitoring their conversations, their telephone calls, the interior of their cars, their private letters or packages.
So there are enclaves of Fourth Amendment protection that this Court has recognized.
Justice Stephen G. Breyer: But what -- but what is the question that I think people are driving at, at least as I understand it and certainly share the concern, is that if you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.
And -- and the difference between the monitoring and what happened in the past is memories are fallible, computers aren't.
And no one, at least very rarely, sends human beings to follow people 24 hours a day.
That occasionally happens.
But with the machines, you can.
So if you win, you suddenly produce what sounds like 1984 from their brief.
I understand they have an interest in perhaps dramatizing that, but -- but maybe overly.
But it still sounds like it.
And so what protection is there, if any, once we accept your view of the case, from this slight futuristic scenario that's just been painted, and is done more so in their briefs?
Mr. Dreeben: Justice Breyer, first of all, this is exactly the argument that was presented to the Court in Knotts.
If you go back to 1983, the beeper technology in that case seemed extraordinarily advanced and there was a potential for it to be used.
Justice Stephen G. Breyer: Of course, that's true.
And they do have a limit.
In this case, they say Knotts involved a single journey, or let's say it involved four journeys.
And let's say it involved 4 journeys in 2 days.
This involves every journey for a month, so they say whatever the line is that's going to protect us, it's short of every journey in a month.
So I'm not asking -- I'm saying I accept your point there, and what do you say is the limit?
Mr. Dreeben: --I first want to address the suggestion that you could draw a line somewhere between a month and a trip and have a workable standard for police officers to use.
Police officers use a variety of investigative techniques which in the aggregate produce an enormous amount of information.
Pen registers, trash pulls; they look at financial records.
They conduct visual surveillance.
And under a principle of law that says 1 trip is okay but 30 trips in not, there is absolutely no guidance for law enforcement in how they are--
Justice Stephen G. Breyer: Well, there is the same kind of guidance that you have in any case of this Court that uses the technique which is used sometimes, and I think it's used for example in the bribing the judge case, you know, with campaign contributions.
You draw an outer limit, you say you can't go beyond that.
We know within that there is no standard.
We'll leave it for the lower courts to work out and we'll review it over time.
That's not necessarily desirable, but that is a method this Court has sometimes used.
But even if it's wrong, I want to know, are you saying there is no limit or are you suggesting one?
Mr. Dreeben: --I'm suggesting that the Court do the same thing that it did in Knotts.
This case does not involve 24-hour surveillance of every citizen of the United States.
It involves following one suspected drug dealer as to whom there was very strong suspicion, for a period of time that actually is less than a month, because the beeper technology failed during--
Chief Justice John G. Roberts: Well, then you're -- you're moving away from your argument.
Your argument is, it doesn't depend how much suspicion you have, it doesn't depend on how urgent it is.
Your argument is you can do it, period.
You don't have to give any reason.
It doesn't have to be limited in any way, right?
Mr. Dreeben: --That is correct, Mr. Chief Justice.
Chief Justice John G. Roberts: Well, isn't the normal way in these situations that we draw these limits how intrusive the search can be, how long it can be, is by having a magistrate spell it out in a warrant?
Mr. Dreeben: When you're talking about the movements of a car on a public roadway, which even Justice Breyer's question seems to concede could be monitored for a day or perhaps 4 days, there is no Fourth Amendment search -- unless--
Chief Justice John G. Roberts: Well, you're talking about the difference between seeing the little tile and seeing a mosaic.
The one gives you information, the other doesn't.
Mr. Dreeben: --So does a pen register, so does a garbage pull.
So does looking at everybody's credit card statement for a month.
All of those things this Court has held are not searches.
Justice Ruth Bader Ginsburg: Mr. Dreeben, this case started out with a warrant.
There was a warrant and the limits weren't followed.
The warrant said 10 days, do this in 10 days, and the police took 11.
They were supposed to do it in D.C. Instead, they did it in Maryland.
So the police could have gotten permission to conduct this search.
In fact, they had received it.
Now, I take it that the practice had been, because it's in the electronic surveillance manual, that you better get a warrant.
Was there any problem about when this kind of surveillance is wanted by the government, get a warrant?
Were they encountering difficulty getting warrants?
Mr. Dreeben: --In this case, there would not have been any difficulty getting a warrant, Justice Ginsburg.
And the warrant authorized things beyond just monitoring the car.
It authorized entering the car in order to install it, which wasn't necessary here.
It also authorized monitoring the car in a location where there was a reasonable expectation of privacy.
This case is only about monitoring a car on public streets.
But I think it's very important to keep in mind that the -- the principal use of this kind of surveillance is when the police have not yet acquired probable cause, but have a situation that does call for monitoring.
And I'd like to give an example.
If the police get an anonymous phone call that a bomb threat is going to be carried out at a mosque by people who work at a small company, the bomb threat on an anonymous call will not provide even reasonable suspicion under this Court's decision in Florida v. J.L.--
But you can hardly expect the FBI to ignore a credible, detailed-sounding piece of information like that.
Chief Justice John G. Roberts: If you get an anonymous tip that there is the same bomb in somebody's house, do you get a warrant or do -- do you just go in?
Mr. Dreeben: --You do neither, because without probable cause you cannot enter the house.
Chief Justice John G. Roberts: Then why are you asking for a different rule in this situation?
Mr. Dreeben: Because the -- the police in this situation have the traditional means available to investigate these sorts of tips.
They could put teams of agents on all the individuals who are within the pool of suspicion and follow them 24/7.
And that would raise--
Justice Sonia Sotomayor: You're -- you're now suggesting n answer to Justice Kennedy's question, which is it would be okay to take this computer chip, put it on somebody's overcoat and follow every citizen everywhere they go indefinitely.
So -- under your theory, and the theory espoused in your brief, you could monitor and track every person through their cell phone, because today the smartphones emit signals that police can pick up and use to follow someone anywhere they go.
Your theory is so long as the -- that all -- that what is being monitored is the movement of person, of a person, they have no reasonable expectation that their possessions will not be used by you.
That's really the bottom line--
Mr. Dreeben: --I think that--
Justice Sonia Sotomayor: --to track them, to invade their sense of integrity in their choices about who they want to see or use their things.
That's really argument you're making.
Mr. Dreeben: --Well, Justice Sotomayor, I think that that goes considerably farther than our position in this case, because our position is not that the Court should overrule United States v. Karo and permit monitoring within a private residence.
That is off limits absent a warrant or exigent circumstances plus probable cause.
And monitoring an individual through their clothing poses an extremely high likelihood that they will enter a place where they have a reasonable expectation of privacy.
Justice Sonia Sotomayor: Cars get parked in a garages.
It happened here.
Mr. Dreeben: Yes, but a car that's parked in a garage does not have a reasonable expectation of privacy as to its location.
Anyone can observe--
Justice Sonia Sotomayor: Neither does a person.
A person goes home and their overcoat gets hung on a hanger.
What's the difference?
Mr. Dreeben: --Once the -- once the effect is in the house, under Karo there is an expectation of privacy that cannot be breached without a warrant, and we are not asking the Court to overrule that.
Justice Sonia Sotomayor: Tell me what the difference between this and a general warrant is?
Mr. Dreeben: A general warrant--
Justice Sonia Sotomayor: --what motivated the Fourth Amendment historically was the disapproval, the outrage, that our Founding Fathers experienced with general warrants that permitted police indiscriminately to investigate just on the basis of suspicion, not probable cause and to invade every possession that the individual had in search of a crime.
How is this different--
Mr. Dreeben: --A warrant authorizes--
Justice Sonia Sotomayor: --this kind of surveillance where there is no probable cause, there is not even necessarily reasonable suspicion in--
Mr. Dreeben: --A warrant authorizes a search.
This authorizes the ability to track somebody's movements in a car on a public roadway, a subject as to which this Court said in Knotts that no individual has a reasonable expectation of privacy because when they go out in their car their car is traveling on public roads.
Anyone can look.
The police have no obligation to avert their eyes from anything that any member of the public--
Chief Justice John G. Roberts: What if we -- I give you that, that it's in public.
Does the reasonable expectation of privacy trump that fact?
In other words, if we ask people, do you think it's -- it violates your right to privacy to have this kind of information acquired, and everybody says yes, is it a response that, no, that takes place in public, or it simply the reasonable expectation of privacy regardless of the fact that it takes place in public?
Mr. Dreeben: --Well, something that takes place in public isn't inherently off limits to a reasonable expectation of privacy.
That's essentially the holding of Katz.
You go into a phone booth, you're in a public; making your calls within the phone booth is subject to a reasonable expectation of privacy.
But this Court, with full awareness of that holding, in Knotts and in Karo recognized that surveillance of a vehicle traveling on the public roadways doesn't fit that description.
Chief Justice John G. Roberts: You can see, though, can't you, that 30 years ago if you asked people does it violate your privacy to be followed by a beeper, the police following you, you might get one answer, while today if you ask people does it violate your right to privacy to know that the police can have a record of every movement you made in the past month, they might see that differently?
Mr. Dreeben: They probably would also feel differently about being followed 24/7 by a team of FBI agents, who gain far more information than a GPS device produces.
GPS only gives you the approximate location of the car as it drives on the roads.
Justice Ruth Bader Ginsburg: And speed as well.
Mr. Dreeben: The approximate speed, the location traveled, that -- that is what the GPS provides.
It doesn't show you where the car stopped.
It doesn't show you who was driving the car.
It doesn't show you who was--
Justice Ruth Bader Ginsburg: An easy way, to pick someone up for speeding when you suspect something far worse but have no probable cause.
Mr. Dreeben: --Well, this Court held in Whren v. United States that when the police have probable cause to stop someone for a traffic violation they can do that.
There are protections--
Justice Ruth Bader Ginsburg: That was when the police came upon the violator.
But this is, it's all in the computer.
The police can say, we want to find out more about X, so consult the database, see if there is an indication that he was ever speeding in the last 28 days.
Mr. Dreeben: --Justice Ginsburg, it's not very hard for police to follow somebody and find a traffic violation if they want to do that.
But to answer in part Justice Breyer's earlier concern about limiting principles, this Court recognized in the Whren decision that, although the Fourth Amendment is not a restriction on discriminatory or arbitrary or oppressive stops that are based on invidious characteristics, the Equal Protection Clause is.
The First Amendment also stands as a protection.
If this Court believes that there is an excessive chill created by an actual law or universal practice of monitoring people through GPS, there are other constitutional principles that are available.
Justice Ruth Bader Ginsburg: But the Fourth Amendment protects us against unreasonable searches and seizures.
And if I were to try to explain to someone, here is the Fourth Amendment, the Fourth Amendment says -- or it has been interpreted to mean that if I'm on a public bus and the police want to feel my luggage, that's a violation, and yet this kind of monitoring, installing the GPS and monitoring the person's movement whenever they are outside their house in the car is not?
It just -- there is something about it that, that just doesn't parse.
Mr. Dreeben: I'm quite sure, Justice Ginsburg, that if you ask citizens whether the police could freely pick up their trash for a month and paw through it looking for evidence of a crime, or keep a record of every telephone call that they made for the duration and the number that it went through, or conduct intense visual surveillance of them, that citizens would probably also find that to be, in the word that Respondents choose to use--
Justice Stephen G. Breyer: But they won't and probably couldn't physically.
Start with the other end.
Start, what would a democratic society look like if a large number of people did think that the government was tracking their every movement over long periods of time.
And once you reject that, you have to have a reason under the Fourth Amendment and a principle.
And what I'm looking for is the reason and the principle that would reject that, but wouldn't also reject 24 hours a day for 28 days.
Do you see where I'm -- that's what I'm listening very hard to find.
Mr. Dreeben: --I think -- all right.
Justice Breyer, two things on that.
First of all, I think the line-drawing problems that the Court would create for itself would be intolerable, and better that the Court should address the so-called 1984 scenarios if they come to pass rather than using this case as a vehicle for doing so.
Second, if the Court--
Justice Sonia Sotomayor: --This case is not that vehicle.
Mr. Dreeben: --If the Court--
Justice Sonia Sotomayor: The GPS technology today is limited only by the cost of the instrument, which frankly right now is so small that it wouldn't take that much of a budget, local budget, to place a GPS on every car in the nation.
Mr. Dreeben: --Well I think that--
Justice Sonia Sotomayor: Almost every car has it now.
Mr. Dreeben: --Well, I think it would be virtually impossible to use the kinds of tracking devices that were used in this case on everyone, because--
Justice Antonin Scalia: Don't we have any legislatures out there that could stop this stuff?
Mr. Dreeben: --Justice Scalia, the legislature is a safeguard, and if the Court believes that there needs to be a Fourth Amendment safeguard as well, we have urged as a fallback position that the Court adopt a reasonable suspicion standard, which would allow the police to conduct surveillance of individuals in their movements on public roadways, which they can do visually in any event, and would allow the police to investigate leads and tips that arise under circumstances where there is not probable cause.
Justice Ruth Bader Ginsburg: Who would be under your test the judge of the reasonable suspicion?
Mr. Dreeben: As in most reasonable suspicion cases, it's the police at the front end and it's the courts at the back end if there are motions to suppress evidence.
But fundamentally, just as in the pen register example and in the financial records example, if this Court concludes, consistent with its earlier cases, that this is not a search yet all Americans find it to be an omen of 1984, Congress would stand ready to provide appropriate protection.
If I may save the rest of my time for rebuttal.
Chief Justice John G. Roberts: Thank you.
Our questions have eaten into your rebuttal time, so we'll give you the full time.
ORAL ARGUMENT OF STEPHEN C. LECKAR ON BEHALF OF THE RESPONDENT
Mr. Leckar: Thank you, Mr. Chief Justice, and may it please the Court:
I want to talk about the one issue that the United States didn't talk about, which is whether this is a seizure.
This case can be resolved on a very narrow basis, a very narrow basis: What are the consequences when the police without a warrant install a GPS secretly on a car of any citizen of the United States and they want to use the evidence gained that way in a criminal trial?
Our position is that's a seizure.
Justice Samuel Alito: What is the size of this device?
Mr. Leckar: I'm sorry, Your Honor?
Justice Samuel Alito: What is the size of this device?
Mr. Leckar: The record doesn't show in this case, but we know -- we learned last week, Justice Alito, from the NACDL that there is now a GPS on the market that weighs 2 ounces and is the size of a credit card.
Think how easy it would be for any law enforcement agent of the 880,000 in the United States to stick one of those on anybody's vehicle.
Justice Samuel Alito: What if it was put on the license place.
Would that be a technical trespass?
Is that the property of the driver?
Mr. Leckar: Well, a license plate as I understand it is the property of the State and driving is a privilege.
But it's not a technical trespass in this particular case.
Mr. Jones has a right--
Justice Antonin Scalia: I didn't own my license plate?
I didn't know that.
How do you know that?
How do you know that?
I paid for my license plate.
Justice Anthony Kennedy: We don't need to get into it, but "Live Free Or Die"--
Mr. Leckar: --What I'm saying, Justice Kennedy and Justice Scalia, is this: That the issue insofar as the seizure is concerned is, is it meaningful.
Everybody agrees here that there is -- that Antoine Jones had the right to control the use of his vehicle.
The question is, was the interference a meaningful deprivation of his possessory interest.
Chief Justice John G. Roberts: I didn't -- I didn't hear an answer to Justice Alito's question.
What is your position on the placement of the GPS device on the State-owned license plate.
Mr. Leckar: They can't do it.
They can't do it, Your Honor.
It's a seizure.
Chief Justice John G. Roberts: It's a--
Mr. Leckar: I'm sorry.
Chief Justice John G. Roberts: --If my understanding is correct that it's the State's license plate that they require you to have, so your trespass theory it would seem falls apart with respect to that particular scenario.
Mr. Leckar: Well, first of all, Justice -- Chief Justice Roberts, my -- you would probably see the GPS and in that case--
Chief Justice John G. Roberts: No.
It's the size of a credit card.
You slip it behind the license plate.
Mr. Leckar: --In that particular case, what you have done is you have -- the installation of the GPS, it is a seizure.
What makes it meaningful is the use of that GPS.
Justice Antonin Scalia: Well, this is ridiculous.
Look at -- you give the State permission to put the license plate -- to carry -- to have your car carry the State's license plate.
You do not give anybody permission to have your car carry a tracking device.
Mr. Leckar: That's correct.
Justice Antonin Scalia: And whether it's put directly on the car or directly on something that the car is carrying doesn't seem to me to make any difference.
Chief Justice John G. Roberts: I thought it made a difference under your theory, which focused on the question of trespass, because it was attached to an effect owned by somebody else.
This is an effect not owned by the individual.
Mr. Leckar: That's correct.
Chief Justice John G. Roberts: So the trespass theory anyway doesn't seem ridiculous to me.
Mr. Leckar: But it's an effect, Your Honor.
The Fourth Amendment protects effects, it protects people.
If you put it on somebody's briefcase, you put it on somebody's car, you have affected their possessory interest.
Then the question becomes--
Justice Elena Kagan: Mr. Leckar, I guess I'm not sure I quite understand the argument, because a trespass is accomplished no matter what you put on somebody's car or somebody's overcoat or what have you.
You could put a nonworking device on somebody's car and it would still be a trespass.
But surely the same constitutional problem is not raised.
So how do you get from the trespass to the constitutional problem.
Mr. Leckar: --As I -- thank you, Justice Kagan.
As I said moments ago, what makes it meaningful, what makes it a meaningful deprivation of a possessory interest, is once the GPS gets activated.
We look at reality.
We follow what Silverman v--
Justice Antonin Scalia: So it doesn't make it a seizure.
That doesn't make it a seizure.
It makes it a search.
Mr. Leckar: --Your Honor--
Justice Antonin Scalia: I mean, you can say that there is a trespass for the purpose of obtaining information, which makes it a search.
But I don't see how it's a seizure.
A seizure, you have to bring something within your control.
You have to stop the person or stop the vehicle.
What has been seized when you -- when you slap a tracking device on a car?
Mr. Leckar: --What has been seized is Antoine's -- data.
Data is seized that is created by the GPS.
Antoine Jones has the right, Your Honor, to control the use of his vehicle.
And what the government did was surreptitiously deprive him of the use of that--
Justice Antonin Scalia: Do you have any case involving seizure of -- of data floating in the air as opposed to papers?
Mr. Leckar: --The closest case I could come, Your Honor, would be Silverman, where the Court called a Fourth Amendment violation where the spike mike just touched -- touched the ventilator unit.
Justice Stephen G. Breyer: It's not a violation unless, in addition to a search, it is an unreasonable search.
And since you already -- and the same is true of seizure, isn't it?
Mr. Leckar: That's right.
Justice Stephen G. Breyer: So you already have everybody agrees it's at least a search.
So what do you care whether the -- and there is a case called Karo which says whether it's a trespass doesn't really matter.
The question is the reasonableness of it.
And that's what I think -- I mean you can argue trespass as much as you want, but I'll still have in mind is it reasonable.
Mr. Leckar: That's right.
Justice Stephen G. Breyer: And I think that's the question we've been debating.
And I would like to know from you -- what they are saying is that the parade of horribles we can worry with -- worry about when it comes up, the police have many, many people that they suspect of all kinds of things ranging from kidnappings of lost children to terrorism to all kinds of crimes.
They're willing to go as far as reasonable suspicion in a pinch.
And they say at least with that you will avoid the 1984 scenario and you will in fact allow the police to do their work with doing no more than subjecting the person to really good knowledge of where he is going on the open highway.
They probably put it better than I did, but I'd appreciate your views on that.
Mr. Leckar: Reasonable suspicion, Justice Breyer, is something that the Court has adopted for limited intrusions.
And I refer you to the United States v. Place.
Every 10 seconds of the day for 28 days is by no person's lights a limited intrusion.
That said, what happened -- what happened here -- society does not view as reasonable the concept that the United States Government has the right to take a device that enables them to engage in pervasive, limitless, cost-free -- cost-free surveillance, that completely replaces the human equation--
Chief Justice John G. Roberts: How do you know that?
Justice Anthony Kennedy: --Why does it have to be cost-free.
Suppose the police department says: We've got two things.
We can put 30 deputies on this route and watch this person or we can have a device with a warrant.
What difference does it make?
Mr. Leckar: --What happens is the police have the capacity with GPS to engage in grave abuse, grave abuse of individual and group liberties, Your Honor.
Justice Anthony Kennedy: But suppose what they got is nothing more than what they would have had if they had 30 deputies staked out along the route.
They'd get the same from 30 deputies.
A constitutional violation?
Mr. Leckar: Yes, if they use a GPS, Your Honor.
Any placement of a GPS on anybody's car--
Justice Anthony Kennedy: Well, no.
We are assuming that there is no initial trespass, which is a problem in this case.
You're saying it's -- it's the quantity and -- of the information seized and the time over which it's seized.
And that's the proposition we are testing.
And it seems to me what you're saying is that the police have to use the most inefficient methods.
Mr. Leckar: --No, Your Honor.
I'm not asking--
Justice Anthony Kennedy: I'm fully aware of the 1984 ministry of love, ministry of -- of peace problem.
But this -- your argument it seems to me has no principled distinction from the case that I put.
Mr. Leckar: --I think I can help you with that.
We are not asking to make the police less efficient than they were before GPS came into effect.
We are simply saying that the use of a GPS has grave potential, grave threats of abuse to privacy; that people have an expectation, Justice Kennedy, that their neighbor is not going to use their car to track them.
People have an -- under Rakas -- I refer the Court to footnote 12 in the Rakas case.
Antoine Jones had control of that car.
Control of that -- of the vehicle meant that he had a reasonable expectation that society is prepared to view as objectively reasonable.
Justice Ruth Bader Ginsburg: But he wouldn't -- he wouldn't be protected against a surveillance camera that could get information, and is this really different in kind from the surveillance camera?
Mr. Leckar: --Yes.
First of all, you have a physical invasion.
That's Bond v. United States.
You have an invasion of his possessory interest, placement on the car.
Physical invasion of a possessory interest, Justice Ginsburg, is more significant, has always been viewed by this Court as more invasive than mere video -- mere visual surveillance.
And even with a camera, it depends on the type of the video camera.
We are not saying that the police are prohibited from having individual video cameras or several video cameras to surveil people.
What we are saying here is this device, this device that enables limitless, pervasive, indiscriminate--
Justice Elena Kagan: What is the difference really?
I'm told -- maybe this is wrong, but I'm told that if somebody goes to London, almost every place that person goes there is a camera taking pictures, so that the police can put together snapshots of where everybody is all the time.
So why is this different from that.
Mr. Leckar: --It's pretty scary.
I wouldn't want to live in London under those circumstances.
Justice Antonin Scalia: Well, it must be unconstitutional if it's scary.
I mean, what is it, the scary provision of what article?
Justice Stephen G. Breyer: And in fact, those cameras in London actually enabled them, if you watched them, I got the impression, to track the bomber who was going to blow up the airport in Glasgow and to stop him before he did.
So there are many people who will say that that kind of surveillance is worthwhile, and there are others like you who will say, no, that's a bad thing.
But that isn't the issue exactly in front of us.
Mr. Leckar: That's correct, Your Honor.
What we have here is a physical--
Justice Stephen G. Breyer: And what Justice Kagan wanted to know is why not.
Mr. Leckar: --Because you have a physical invasion of property.
Justice Stephen G. Breyer: Oh, my goodness.
Sorry, I just had that expression because I'm reading.
"The existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated, however, for an actual trespass is neither necessary nor sufficient to establish a constitutional violation. "
So you can talk if you'd like.
It's your hour.
But I would really be very interested in hearing you on the assumption that the real issue here is whether this is reasonable.
Mr. Leckar: It's not, Your Honor.
This is not a Karo case.
First of all, in Karo the installation was essentially consented to.
You took -- the package came in by virtue of somebody who was working for the government.
So the installation was not unlike this case -- was unlike this case, where it was surreptitious and directly engaged in by a government agent.
Justice Anthony Kennedy: But you're -- you're mixing, you're mixing two things.
You're the one -- I thought your position was that the initial trespass is not important.
That's the narrow way to decide the issue.
You don't want us to do that.
So now we ask you about Karo and you say: Oh, well, there was a trespass.
So that's -- that's not -- that's not a responsive answer.
Mr. Leckar: Well, but technology, as you observed, Justice Kennedy, is dramatically different with GPS than was present in Karo.
Justice Sonia Sotomayor: But it's going to be dramatically different in the next step.
There are now satellites that look down and can hone in on your home on a block and in a neighborhood.
I don't see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place.
Mr. Leckar: Well--
Justice Sonia Sotomayor: So if -- give us a theory.
Is that okay for the police to access those cameras and look at you moving from place to place?
And if that's okay, then why is this not okay?
What is your theory of your case?
Mr. Leckar: --Our theory, Justice Sotomayor, with respect to video camera, if they are targeting an individual, this presents a gray question.
It's a question that need not be resolved given this case.
But if the Court wanted to address that question, once the police target somebody, they want to engage in individualized targeting for use of a pervasive network of cameras -- and GPS is like a million cameras.
That's -- the New York Court of Appeals pointed that out, and this--
Justice Sonia Sotomayor: I think there are about 28 satellites up there.
Mr. Leckar: --All right.
It's 28 cameras, but the equivalent of a camera tracking you every street corner you're on everywhere.
Once you have individualized suspicion like that, if the Court wanted to deal with it, I believe you would have to have a warrant.
Justice Antonin Scalia: Mr. Leckar, your -- all of this discussion, you're going into it, but the questioning leads you into it, it seems to me leaps over the difficult part of your case.
The issue before us is not -- not in the abstract whether this police conduct is unreasonable.
The unreasonableness requirement or the unreasonableness prohibition does not take effect unless there has been a search.
And our cases have said that there is no search when -- when you are in public and where everything that you do is open to -- to the view of people.
That's the hard question in the case, not whether this is unreasonable.
That's not what the Fourth Amendment says, the police can't do anything that's unreasonable.
They can do a lot of stuff that's unreasonable without violating the Fourth Amendment and that -- the protection against that is the legislature.
But you have to establish, if you're going to go with Katz, that there has been an invasion of, of privacy when all that -- all that this is showing is where the car is going on the public streets, where the police could have had round-the-clock surveillance on this individual for a whole month or for 2 months or for 3 months, and that would not have violated anything, would it?
Mr. Leckar: No.
Justice Antonin Scalia: Why?
Because there is no invasion of privacy.
So why is this an invasion of privacy?
Mr. Leckar: Because it is -- it is a complete robotic substitute.
It's not a -- it's not a tail.
And interestingly enough, Your Honor.
The government only cited in its brief one instance of a 24-hour surveillance for all of 2 days.
What you have here, Justice Scalia, is -- I'm going to refer to your dissent.
Justice Antonin Scalia: 100 times zero equals zero.
If -- if there is no invasion of privacy for 1 day, there is no invasion of privacy for 100 hundred days.
Now, it may be unreasonable police conduct, and we can handle that with laws.
But if there is no invasion of privacy, no matter how many days you do it, there is no invasion of privacy.
Mr. Leckar: Justice Scalia, what -- I'm going to refer to your dissent along with Justice Breyer in Bond v. United States.
A GPS in your car is, or anybody's car, is like -- without a warrant, is like having an -- it makes you unable to get rid of an uninvited stranger.
That's what it is.
Justice Antonin Scalia: So is a tail.
So is a tail when the police surveil -- surveil you for, for a month.
Mr. Leckar: --The question we have to answer in this case, Justice Scalia, is this.
A tail -- if they can -- if they want to tail, if they want to commit the resources, that's fine.
But what a GPS does, it involves -- it allows the government to engage in unlimited surveillance through a machine, through a machine robotically.
Nobody is even involved monitoring it.
The record in this case showed that many times the police officers just let -- let the machine go on.
Justice Samuel Alito: Well, where would you draw the line?
Suppose that the GPS was used only to track somebody's movements for one day or for 12 hours or for 3 hours.
Would that be all right?
Mr. Leckar: Our position, Justice Alito, is, no circumstances should a GPS be allowed to be put on somebody's car.
But we recognize--
Justice Samuel Alito: Put aside -- put aside the trespass question.
Mr. Leckar: --I'm not addressing it purely as a trespass.
Our view is the GP -- the use of a GPS as a search in and of itself should be, is -- should be viewed as unreasonable.
But if the Court were uncomfortable with that, if the Court had concerns with that, we suggested in our brief some possibilities: One day; one trip; one person per day or a trip; or perhaps when you use it exactly as a beeper, when you follow it, when you actually physically follow it.
Justice Samuel Alito: Well, that sounds like a legislative line.
But what is the difference between following somebody for 12 hours, let's say, and monitoring their movements on a GPS for 12 hours?
You would say that the latter -- your first argument is, there is a problem with the latter but not with the former.
But what would the reason for that be?
Mr. Leckar: Because it's an unreasonable invasion of privacy, Your Honor.
Justice Samuel Alito: What -- what is the difference in terms of one's privacy whether you're followed by a police officer for 12 hours and you don't see the officer or whether you're monitored by GPS for 12 hours?
Mr. Leckar: Because -- because what you have here is society does not expect that the police, the human element would be taken out of -- would be taken out of the surveillance factor.
Justice Samuel Alito: You know, I don't know what society expects and I think it's changing.
Technology is changing people's expectations of privacy.
Suppose we look forward 10 years, and maybe 10 years from now 90 percent of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones.
Then -- what would the expectation of privacy be then?
Mr. Leckar: Well, the use of a cell phone, there are two ways of looking at it.
As Justice Kennedy observed in Quon, cell phones are becoming so ubiquitous, there may be privacy interests.
Our view is that currently the use of a cell phone, that's a voluntary act.
People nowadays understand that there are ways to monitor by way of a cell phone.
But I started my oral argument with this basic precept, Justice Alito.
This case does not require us to decide those issues of emerging technology.
It's a simple case at the core: Should the police be allowed surreptitiously to put these machines on people's cars and either -- call it a seizure, call it a search, call it a search and seizure, in the words of Katz, or call it a Fourth Amendment violation.
Justice Samuel Alito: Well, that -- maybe that's a good way to decide the case.
But I just wonder, would Mr. Jones or anybody else be really upset if they found that the police had sneaked up to their car and put an inert device the size of their credit card on the underside of the car?
What would they say about that, other than the fact that the police are wasting money doing this?
Mr. Leckar: If it were nothing more than a note, say, or even a bumper sticker like you get at South of the Border, probably nothing.
Justice Samuel Alito: You don't even see it.
It's just a little wafer, they put it under the car, it does nothing.
Mr. Leckar: It's a little wafer that's got an enormous capacity.
Justice Samuel Alito: But this one does nothing, and you -- so you would go -- you would sue -- you would bring a trespass action.
Mr. Leckar: No, heavens, no, Your Honor.
If it did nothing, first, it wouldn't be a Fourth Amendment problem.
Justice Samuel Alito: So what's you're concerned about is not this little thing that's put on your car.
It's not this invasion of your property interest.
It's the monitoring that takes place.
Mr. Leckar: The monitoring makes it meaningful.
Putting it on enables them to--
Justice Elena Kagan: But to ask Justice Alito's question in a different way, suppose that the police could do this without ever committing the trespass.
Suppose that in the future all cars are going to have GPS tracking systems and the police could essentially hack into such a system without committing the trespass.
Would the constitutional issue we face be any different?
Mr. Leckar: --As I assume, that's because of manufacturers doing it, or because Congress has legislated it, Justice Kagan?
Under either circumstance, people would know.
They would know that their privacy rights have been taken away.
Whether that would be possible to go through Congress, I seriously doubt, but people would know.
In this particular case, Antoine Jones had no idea whatsoever that his possessory interest in that property was about to be deprived by the government in a meaningful way to allow them to get information they couldn't have otherwise have gotten.
Justice Alito, what happens here, GPS produces unique data.
When you and I drive down the street, we don't emit GPS data.
What makes GPS data meaningful is the act -- is the use and placement of the GPS device, that was in this case, in this case, unconsented to by Antoine Jones unknowingly.
And the government knew that.
That's why they went and did it surreptitiously, because they couldn't get it any other way.
Justice Anthony Kennedy: Lots of communities have, including Washington, cameras on -- at intersections on stop lights.
Suppose the police suspected someone of criminal activity and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements and his routes for 5 days.
Would that be lawful?
Mr. Leckar: I think that would be allowable, Your Honor.
I don't think--
Justice Anthony Kennedy: You think it would be?
Mr. Leckar: --I think that would be permissible, Your Honor.
First of all, you don't have an invasion of -- you don't have a physical intrusion, unlike this case.
Justice Anthony Kennedy: You have -- you have a targeted invasion.
It's over a period of time.
It's over a long -- it's over a wide space, and it seems to me that -- it seems to me that you have to answer my question yes to be consistent with what you've said earlier.
Mr. Leckar: --No, Your Honor.
As I said earlier, that you can have an -- you can have an occasional video camera out there.
People understand nowadays that there may be video cameras out in public space.
The -- but we don't have any -- society does not expect or view it as reasonable to have the equivalent of a million video cameras following you everywhere you go.
A few video cameras, people know.
They've cropped -- they've cropped up and they have been accepted.
But this is a horse of an entirely different color.
This is a small device that enables the government to get information of a vast amount of--
Justice Sonia Sotomayor: What a--
Mr. Leckar: --The camera is one site -- one--
Justice Sonia Sotomayor: --What an unworkable rule with no -- tethered to no principle.
Mr. Leckar: --I'm sorry?
Justice Sonia Sotomayor: What an unworkable rule tethered to no principle.
A thousand video cameras may or may not be okay, depending on how large the city is?
Mr. Leckar: No, Justice Sotomayor.
I think the workable rule and the simplest rule that should be adopted is this.
I think the Court should say to the law enforcement agency: You came here looking for a rule; we are going to give you a rule.
If you want to use GPS devices, get a warrant, absent exigent circumstances or another recognized exception to the Fourth Amendment, because of their capacity for -- to collect data that you couldn't realistically get; because of the vanishingly low cost, because of their pervasive nature, that you should get a warrant any time -- you must get a warrant any time you're going to attach a GPS to a citizen's effect or to a citizen's person.
Chief Justice John G. Roberts: Well, that gets back to Justice Scalia's question, which is you've got to determine that there has been a search first before you impose the warrant requirement.
And it seems to me that your -- the warrant requirement applies only with respect to searches, right?
Mr. Leckar: That's -- and seizures.
Chief Justice John G. Roberts: Okay.
So while it might seem like a good idea to impose the requirement on this particular technological device, you still have to establish that it's a search.
Mr. Leckar: But if you know, if you the police agents know -- this is the deliberative process.
These devices aren't used for just quick one-off surveillance.
They are used to track people over time, as witness this case, every 10 seconds of the day for 28 days.
If you know you're going to do that and you know, Justice Roberts that this device -- this device has an amazingly invasive power and capacity.
If you know you're going to do that and you're a law enforcement agent, then you do what they did originally.
You get a warrant.
Chief Justice John G. Roberts: Now we pushed your -- we pushed your friend to the limits of his theory.
Your theory I take it would apply if you're going to do it for 3 minutes, right?
Where is the car?
You push a button; it's 3 minutes; you say that's still a Fourth Amendment violation?
Mr. Leckar: Yes.
Chief Justice John G. Roberts: Don't talk to me about how long they are going to be doing it, or all the information.
We have to test the validity on the theory of your proposition that it violates the Fourth Amendment to do this for 3 minutes.
Mr. Leckar: I -- I think it does, Your Honor, because of the -- society does not expect -- society views it as objectively reasonable not to expect--
Chief Justice John G. Roberts: You said that several times.
How do we tell?
I mean, I don't know what society expects.
I suppose if you ask people do you think it's a violation of privacy for the police to do this for no reason for a month, maybe they would come out one way.
If you asked the people do you think the police have to have probable cause before they monitor for 5 minutes the movements of somebody they think is going to set off a huge bomb, maybe you get a different answer.
Mr. Leckar: --You look to -- you look to the common law.
You look to well established case law.
You look to statutes in several jurisdictions; I think there are seven or eight that said this sort of practice should be prohibited.
Justice Antonin Scalia: Excellent.
Of course a legislature can take care of this, whether or not there is an invasion of privacy.
And they can pick 5 days out of the air.
You can't do it for any more than 5 days, or you can't do it to more than -- than 50 people at a time.
They can take care of all of that stuff.
We can't do that in a decision under the -- under the Fourth Amendment.
Mr. Leckar: We have--
Justice Antonin Scalia: Why isn't this precisely the kind of a problem that you should rely upon legislatures to take care of?
Mr. Leckar: --That's the same -- that's the same -- same problem that the United States advanced before this Court in the United States v. District Court; give it to Congress.
And what this Court there did, it held a Fourth Amendment violation so far as domestic security is concerned and gave Congress suggestions.
In this particular case I could probably give you 535 reasons why not to go to Congress--
--but let me suggest something, Justice Scalia.
What happened was the United States has adopted a shifting position.
They came to this Court and they said we want a workable rule; give us a workable rule.
You either overrule the D.C. Circuit, which you should not do, or give us a workable rule.
Now they have said in their brief oh, let's take it to the legislature.
They can't have it both ways.
Justice Stephen G. Breyer: Can you take it to Congress the other way?
I mean, can you say that a general search of this kind is not constitutional under the Fourth Amendment, but should Congress pick out a subset thereof, say the -- terrorism or where there is reasonable cause or like the FISA court or special courts to issue special kinds of warrants, that that's a different question which we could decide at a later time?
That's a negative way of -- I mean that way favors you in the result, but I've -- I've been looking for if there is a way of going to Congress to create the situations where they can do it, rather than the situations where they can't.
Mr. Leckar: Justice Breyer, that was exactly what Congress, what happened when the foreign intelligence surveillance courts were created.
You hit it right on the nail.
All this Court has to do is decide the narrow question before it, which I've articulated several times.
Justice Antonin Scalia: I don't see why it's any of Congress's business if it's a -- if it's a purely intrastate operation.
Congress can control police practices that don't violate the Fourth Amendment throughout the country.
I mean, maybe interstate, interstate beepers and interstate tracking devices, yes, but so long as you track within -- within the State isn't that okay?
Mr. Leckar: No, Your Honor.
First of all, let me refer to Chief -- to Justice Frankfurter's comments a long time ago in Watts v. Indiana: Justices are not ignorant of the law, what they know to be true as men and women, but other legislatures will follow Congress.
But what we have here -- what we have here is a live case of controversy in which Antoine Jones' control of his vehicle and his car was converted into an electronic GPS electronic transceiver serving the government.
So that case is here and it -- it needs to be decided.
One doesn't need to address technologies that aren't here before the Court today.
You could; we could venture down that road.
We could discuss drone surveillance, we could discuss balloon surveillance and other types of surveillance, but we don't have to.
It's a narrow--
Justice Samuel Alito: There was a warrant -- there was a warrant in this case.
This is a puzzling aspect of the case to me and maybe there -- it's irrelevant for present purposes.
There was a warrant and the two violations of are violations of a statute and a rule, neither of which may carry an exclusionary rule sanction with them or exclusionary rule penalty with them.
It's not clear at all that there as a violation of the Fourth Amendment.
So it's a little strange that we are deciding whether a warrantless search here would have been unconstitutional, when there was a warrant.
Mr. Leckar: --They had the choice.
They could have easily -- they could have gone back to the district judge and said -- given the district judge--
Justice Samuel Alito: No, that's not my point.
The point is that the violation of the 10-day rule and the violation of the statutory prohibition on -- or maybe it's in the rule, the prohibition on the judge in the district, ordering the installation only in the district are not Fourth Amendment requirements.
Mr. Leckar: --No.
That's correct, Your Honor, but what we have -- what we have here is a warrantless intrusion.
When -- when the warrant--
Justice Samuel Alito: Not a warrantless intrusion, there was a warrant.
Mr. Leckar: --But the warrant was not in effect.
At the -- at the time the -- the GPS was placed, Justice Alito, there was no warrant.
There's a case this Court decided in the--
Justice Ruth Bader Ginsburg: I think that's been conceded by both sides and that's accepted by both sides.
The warrant expired.
There was no warrant.
The government certainly could have gone back and said, judge, we didn't make it; we need a little more time; give us 10 more days.
Mr. Leckar: --They could -- they could conceivably gone back there and explained to the district judge why they couldn't have installed it in that period of time.
Justice Samuel Alito: I think if you look at the lower court case law, you will find that a violation of the 10-day rule is not necessarily a violation of the Fourth Amendment.
Mr. Leckar: --I understand that.
Justice Samuel Alito: --doesn't vitiate the warrant.
The warrant doesn't necessarily dissolve or evaporate when those 10 days expire.
Mr. Leckar: Your Honor--
Justice Samuel Alito: Maybe those cases are wrong.
Mr. Leckar: --There is a 1920 Supreme Court decision decided during the Prohibition era that specifically said that when a warrant expires there is no warrant.
When the 10-day rule in that case is expired, there is no warrant.
We have a warrantless intrusion here.
The government didn't have to do a warrantless intrusion.
I ask the Court to -- affirm.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Dreeben, 5 minutes.
REBUTTAL ARGUMENT OF MICHAEL R. DREEBEN ON BEHALF OF THE PETITIONER
Mr. Dreeben: Mr. Chief Justice, advancing technology cuts in two directions.
Technological advances can make the police more efficient at what they do through some of the examples that were discussed today: cameras, airplanes, beepers, GPS.
At the same time, technology and how it's used can change our expectations of privacy in the ways that Justice Alito was alluding to.
Today perhaps GPS can be portrayed as a 1984-type invasion, but as people use GPS in their lives and for other purposes, our expectations of privacy surrounding our location may also change.
Justice Elena Kagan: Mr. Dreeben, that -- that seems too much to me.
I mean, if you think about this, and you think about a little robotic device following you around 24 hours a day anyplace you go that's not your home, reporting in all your movements to the police, to investigative authorities, the notion that we don't have an expectation of privacy in that, the notion that we don't think that our privacy interests would be violated by this robotic device, I'm -- I'm not sure how one can say that.
Mr. Dreeben: --Justice Kagan, I think the Court should decide that case when it comes to it.
This was my fundamental point: this case does not involve universal surveillance of every member of this Court or every member of the society.
It involves limited surveillance of somebody who was suspected of drug activity--
Justice Anthony Kennedy: You probably haven't had the opportunity to go on a vacation.
Suppose exactly these facts, only the police aren't involved.
A neighbor does it to another neighbor in order to see where that neighbor is going, and when he finds out, he tells his wife and -- and other neighbors.
Do you think that in most States, that would be an invasion of privacy?
Mr. Dreeben: --I'm willing to assume that it might be, Justice Kennedy, but I don't think that this Court measures the meets and bounds of the Fourth Amendment by State law invasions of privacy.
The Court usually--
Justice Anthony Kennedy: We measure it by expectations of privacy under the Katz test if -- that may or may not be controlling.
Mr. Dreeben: --Yes, but in Greenwood, the Court dealt with a case where California had outlawed taking somebody's garbage, and this Court said that did not define an expectation of privacy for purposes of--
Justice Anthony Kennedy: It found that there was no expectation of privacy.
Mr. Dreeben: --Correct.
Justice Anthony Kennedy: I'm asking you about this case, whether there would be an expectation of privacy -- on a general matter under tort law.
Mr. Dreeben: I don't think so.
And -- and the fact that something may be a tort for a private person doesn't mean it's a problem for the police to do it.
For example, in the Dow Chemical case, where the police used -- EPA in that case actually used cameras to surveil an industrial plant.
There was a claim that it would have violated trade secret law for anybody else to do that.
And the Court accepted that and said tort law doesn't define the boundaries of the Fourth Amendment.
In Knotts, the Court was very careful to reserve the possibility of 24-hour surveillance of every citizen in their persons and in their residences, saying we haven't seen that kind of abuse.
If that kind of abuse comes up, the legislature is the best-equipped to deal with it, if in fact our society regards that as an unreasonable restriction on--
Justice Sonia Sotomayor: Do you have any idea of how many GPS devices are being used by Federal Government agencies and State law enforcement officials?
Mr. Dreeben: --The Federal Government, I can speak to, and it's in the low thousands annually.
It's not a massive universal use of an investigative technique.
The FBI requires that there be some reasonable basis for using GPS before it installs it.
And as a result, this is a technique that basically supplements visual surveillance rather than supplanting it all together.
There was visual surveillance that was directed at respondent.
The GPS allowed it to be more effective.
As Justice Kennedy's and I think Justice Scalia's hypotheticals illustrated, Respondent is essentially conceding that around-the-clock visual surveillance through teams of agents would not have invaded any expectation of privacy.
This Court said in Knotts that police efficiency has never been equated with police unconstitutionality.
The fact that GPS makes it more efficient for the police to put a tail on somebody invades no additional expectation of privacy that they otherwise would have had.
The technology doesn't make something private that was previously public.
When we go out in our cars, our cars have driver's licenses that we carry.
We have license plates on the car.
These are for the purpose of identification--
Justice Sonia Sotomayor: You don't seriously argue that there isn't a possessory interest in who puts something on your car, and who you -- like a -- a sign of some sort.
Mr. Dreeben: --Oh, I think there would probably be some sort of State law possessory interests -- Mr. Chief Justice, may I finish?
But there is no seizure, for the very reason that Justice Breyer described under the Katz case.
This Court has said that -- that trespass is neither necessary nor sufficient to create a Fourth Amendment violation.
Chief Justice John G. Roberts: Thank you, Mr. Dreeben, counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Scalia has our opinion this morning in Case 10-1259, United States versus Jones.
Justice Antonin Scalia: This case is here on writ of certiorari to the United States Court of Appeals for the District of Columbia Circuit.
In 2004, the respondent, Antoine Jones, came under suspicion of trafficking in narcotics.
The Government obtained, from the United States District Court here, a warrant authorizing the installation of an electronic tracking device on the Jeep registered to Jones' wife to be installed in the District of Columbia and within 10 days.
On the 11th day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking -- tracking device on the undercarriage of the Jeep while it was parked in a public parking lot.
Over the next 28 days, the Government used the device to track the vehicle's movements.
In the later trial of Jones and others on drug trafficking charges, the District Court suppressed the GPS data obtained while the vehicle was parked at Jones' residence but admitted the remaining data which connected Jones to the alleged conspirators' stash house that contained significant amounts of cash and narcotics.
The jury returned a guilty verdict, and the District Court sentenced Jones to life imprisonment.
The D. C. Circuit set the conviction aside, concluding that admission of the evidence obtained by the warrantless use of the GPS tracking device violated the Fourth Amendment.
We granted certiorari, and we now affirm.
The Fourth Amendment protects “the right of the people to be secure in their persons, houses, papers and effects against unreasonable searches and seizures".
The Jeep is certainly an effect, as that term is used in the Amendment.
We hold that the Government's physical intrusion on the Jeep, for the purpose of obtaining information, constitutes a search.
This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.
The text of the Amendment reflects its close connection to property, since otherwise it would have referred simply to the right of the people to be secure against unreasonable searches and seizures.
That's not what it says.
It says "to be secure in their persons, houses, papers and effects against unreasonable searches and seizures".
The -- that last phrase would have been superfluous.
Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th Century.
Our later cases, of course, have departed from an exclusively property based approach.
They have applied the analysis of Justice Harlan's concurrence in Katz versus United States, a 1967 case which said that a Fourth Amendment violation occurs when government officers violate a person's reasonable expectation of privacy.
The Government contends that Justice Harlan's standard shows that no search occurred here, since Jones had no reasonable expectation of privacy in the area of the Jeep accessed by government agents, namely, the -- the underbody and in the locations of the Jeep on the public roads which was visible to all.
We do not address those contentions because Jones' Fourth Amendment rights do not rise or fall with the Katz formulation.
At bottom, as we said in Kyllo versus United States, we must “assure preservation of that degree of privacy against Government that existed when the Fourth Amendment was adapted”.
Katz did not repudiate the understanding that the Fourth Amendment embodies a particular concern for government trespass upon the areas that it enumerates.
The reasonable expectation of privacy test has been added to, not substituted for the common law trespassory test.
The Government relies heavily on two post Katz cases in which we rejected Fourth Amendment challenges to the use of beepers, another sort of tracking device that the Government had placed inside a container of chemicals in order to monitor the container's movements.
In the first of those cases, United States versus Knotts, we held that the monitoring of the movements did not violate the Katz's reasonable expectation of privacy test since the information obtained, the location of an automobile carrying the container on public roads and the location of the offloaded container in open-fields near Knotts' cabin, had -- had been -- had been voluntarily exposed to the public.
The common law trespassory test was not at issue in that case.
And in the second “beeper” case, United States versus Karo, we addressed the question left open by Knotts, whether the installation of a beeper in a container constituted a Fourth Amendment violation.
But as in Knotts, at the time the beeper was installed in Karo, the container belonged to a third party, and it did not come into the defendant's possession until later.
Karo had accepted the container as it came to him, beeper and all.
The installation of the beeper had not violated his property rights.
Accordingly, he was not entitled to object to the beeper's presence when it was later used to monitor the container's location.
Jones, who possessed the Jeep at the time the Government trespassorily inserted the GPS device, stands in a different position.
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable and thus lawful under the Fourth Amendment.
The Government did not raise this argument below and the Court of Appeals, therefore, did not address it.
We consider the argument forfeited.
The judgment of the Court of Appeals is affirmed.
Justice Sotomayor has joined the Court's opinion, but has filed a separate concurrence.
Justice Alito has filed an opinion concurring in the judgment, in which Justices Ginsburg, Breyer and Kagan join.