Schwartz & Powell

U.S. Supreme Court : No GPS Tracking Without Warrant

by Steven D. Powell Attorney at Law

GPS tracker imageThe United States Supreme Court recently said warrantless GPS tracking of a cocaine dealer is a violation of the Fourth Amendment’s prohibition against unreasonable search and seizure.  They reversed his conviction because in this drug case the motion to suppress evidence properly should have been granted.  The evidence was obtained through secretly tracking the dealer with a GPS device law enforcement planted under the dealer’s automobile. The court in U.S. v. Jones  decided 9-0 that GPS tracking requires a warrant.

The interesting thing about the Court’s decision is how it got there.  Justice Scalia wrote the Court’s opinion which is curious at best and twisted legal reasoning at worst.  I say this with all due respect for the Court and Justice Scalia.  I think his decision was correct but for all the wrong reasons.  Respectfully, I believe Justice Scalia is on an unfruitful  goose hunt trying to find “originalist” solutions to modern legal problems. 

Justice Scalia fancies himself “an Originalist,” one who interprets the United States Constitution based upon a world view supposedly derived from and based in the world view of the original founders of the Constitution.  Because he is an Originalist, he hooked his reasoning to case law from the 17th Century in which somebody committed a trespass or illegal touching  to a coach in England.  He analogized this irrelevant case of trespass to chattels, as they used to call it, to law enforcement attaching the GPS device to the drug dealer’s car.  He concluded because this precedential case, decided in England well before enactment of the United States Constitution and the Fourth Amendment, found a trespass to chattels is actionable, then surely the founders of the Constitution must have envisioned the key to any Fourth Amendment violation in U.S. v. Jones  was the trespass to the cocaine dealer’s automobile.

This reasoning, respectfully, is wrong headed, inarticulate and surprisingly dense to form the core of such an important case decision.  I agree with the result because I believe the defendant in this case had a reasonable expectation of privacy in his comings and goings, not because his Great, Great, Great, Great, Great Great-Grandfather had the ability to sue in court for trespass to his coach in the 17th Century English courts. 

The entire body of Originalist Constitutional interpretation is based on the fundamental premise that a Court, thinking about issues the founding fathers never thought about, is able to articulate what the signatories to the Constitution  would have thought about issues they never confronted in a world they never even imagined.  I seriously doubt whether Ben Franklin, as smart as he was, envisioned GPS. 

The second fallacy Orignalism depends on is the thought that any historian can ever comprehend the Founding Fathers’ original intentions. 

There is no monolithic Founding Fathers point of view.  Ben Franklin from Pennsylvania, James Madison from Virginia, Alexander Hamilton from New York and our first President George Washington all had different views about different things, as is our American tradition and experience. 

It is most presumptuous for appointed judges to tell the people of these United States that the law shall be what folks in 1787 may have thought the law would be even though these folks had no idea what questions would be subject to constitutional scrutiny in the future.  

The  18th Century Originalist point of view of Justice Scalia just doesn’t work in the 21st  Century.  Did you ever read Nathaniel Hawthorne’s The Scarlett Letter, in which Reverend Dimmesdale seduced Hester Prynne?  The original colonists  punished her for her crime of adultery  by making her wear the “Scarlet Letter A”  on her clothing.  According to Justice Scalia’s originalist point of view, it would be okay for the District of Columbia to resurrect such a punishment.  If so, many members of Congress would be wearing Hester's letter of shame. 

We at Schwartz & Powell know how to make motions to suppress evidence and have had remarkable success in so doing in Ventura  drug cases, Ventura weapons charges, and  financial crimes where law enforcement disregarded the Fourth Amendment.  We read the high court’s opinions and think about them so we can plan our evidentiary attacks with skill and confidence.  If you or a loved one find yourself subject to investigation or arrest on any criminal case, Schwartz & Powell’s lawyers are alert to these issues and know what to do.  Experience matters.





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