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The United State Supreme in  United States v. Jones, No. 10-1259 on January 23, 2012 found that police violated the U.S. Constitution when they placed a GPS  tracking device on a suspect’s car and monitored its movements for 28 days.

When the police suspected Antoine Jones, owner of a Washington D.C. nightclub, was part of a cocaine-selling operation, they placed a tracking device on his Jeep Grand Cherokee without a valid warrant, and tracked his movements for a month. The evidence  gathered was used to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

The United States Court of Appeals for the District of Columbia Circuit in U.S. v Maynard, 615 F.3rd 544 (D.C. Cir. 2010)  reversed the conviction because of the sheer amount of information collected  was “unreasonable.” The Fourth Amendment of the Constitution bars “unreasonable” searches.

The Supreme Court affirmed that decision, but on a different ground. Justice Antonin Scalia, for the majority (Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor)  wrote: “We hold that the government’s installation of a G.P.S. device on a target’s vehicle, 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.”

Justice Scalia distinguished the prior Supreme Court decision of U.S. v Knotts, 460 U.S. 276 (1983) that allowed the use of  a beeper that sent a signal which grew stronger as the police drew closer and so allowed them to follow a car over a single 100-mile trip.  Justice Scalia found the Knotts case different because the police had placed the beeper in a container of chemicals before the suspect accepted it. In the Jones case, by contrast, “officers encroached on a protected area.”

Justice Samuel A. Alito Jr., in a concurring opinion for the the minority (Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan joined the concurrence) faulted the majority for applying  18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy. “The use of longer term G.P.S. monitoring in investigations of most offenses impinges on expectations of privacy.”  “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.”

Why is this of interest to Montanans?

This case should be of interest to Montanans for at least two reasons. First, the Montana Constitution, unlike the U.S. Constitution, recognizes a right to privacy in its Bill of Rights.  Second, the United States Court of Appeals for the  9th Circuit (which hears federal cases arising in Montana and eight (8) other western states, (see map).  in a earlier case, U.S. v. Pineda-Moreno, 591 F. 3d 1212 (9th Cir. 2010), rehearing denied  617 F. 3d 1120 (9th Cir. 2010),  with very similar facts, found that the warrantless placement of a GPS tracking device on a car was constitutional.  That decision was the controlling federal law applicable to federal cases in Montana, and other states within the 9th Circuit, until the U.S. v. Jones case.