Last fall, I posted about a right-to-privacy case that involved police planting a GPS tracker in a suspect’s car without court sanction. To briefly recap, police wished to track the comings and goings of a suspected drug trafficker, so they obtained a search warrant for planting a GPS tracker on the suspect’s car. In execution, though, the police had let the warrant expire before they acted on it, and then they planted the tracker outside the warrant’s jurisdiction.
The government argued that attaching the tracker to a car’s underside was too trivial a violation of property rights to matter, and further that no one who drove on public streets could expect his movements to go unmonitored. Of course it was exactly this sort of cynical arrogance that contributed to our Founders’ writing into our Bill of Rights a requirement for the government to show cause to and get permission from a court before that government could invade and search an individual or his property. Indeed, many of the government’s men understood this today; albeit they were breathtakingly careless in the execution: police had, in fact, obtained a warrant to attach the tracker, but within the District of Columbia. However, they then installed the device after the warrant had expired and while the car was parked in Maryland.
Today, reports The Wall Street Journal, the Supreme Court handed down its ruling. In a unanimous opinion, the Court said that police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle—the Founders’ view, and American rights, were vindicated and upheld.
Still, the Court split in its opinion. Justice Antonin Scalia, in the five-Justice majority opinion, held that the 18th century concept of “persons, houses, papers, and effects” included such private properties as 21st century automobiles in the 4th Amendment protection against unreasonable searches (and seizures). Thus, the 4th Amendment is technology-agnostic: our rights appertain to us, not to our property. But we knew that from our Declaration of Independence.
Justice Samuel Alito went even further, in a dissenting concurring opinion (signed onto by the likes of Justices Elena Kagan, Ruth Bader Ginsberg, and Stephen Breyer). Alito held that the warrantless (unwarranted?) GPS tracker implant not only violated the victim’s right of privacy, it violated his “reasonable expectation of privacy,” because, as the Court had held as long ago as 1967, “the Fourth Amendment protects people, not places.”
Alito was quite clear in his reasoning, as summarized by the WSJ at the above link:
…a property-based approach was too narrow to guard against the proliferating threats to personal privacy modern technology posed.
In broadening Scalia’s argument, we see that technology agnosticism, again, with regard to our rights and freedoms.
In the end, the original obtaining of a warrant, coupled with the administration’s argument that the warrantless search was only a trivial violation, demonstrates this administration’s utter cynicism when it comes to the rights and freedoms of Americans—and the continued need for the 4th Amendment to be applied rigorously and zealously.