Antonin Scalia, The 'Tiny Constable,' And Why Cops Need Warrants For GPS Car Trackers

As reported by Jalopnik: Is a GPS tracking device the same thing as a police officer who hides in your car? That’s how polarizing U.S. Supreme Court justice Antonin Scalia, who died at 79 last Saturday, approached the question of whether the Police need warrants to put GPS trackers on cars.

Depending on how you view things, Scalia was either a strict constructionist champion of individual rights, or a powerful opponent of progressive social change. But Scalia’s unique lens on the law led to an opinion that’s had a lasting effect on how law enforcement agencies can track vehicles in criminal investigations.

Thanks to the Supreme Court’s decision in the 2011-2012 case United States v. Jones, which came with a majority opinion written by Scalia, law enforcement agencies are now required to get search warrants before affixing a GPS tracking device to someone’s car.

The case went like this: in 2004, police in Washington D.C. and the FBI were investing nightclub owner Antoine Jones for drug trafficking. They secured a warrant to get a GPS tracking device to affix to Jones’ Jeep (a car actually registered to his wife), but that warrant ordered the device to be placed within 10 days and only in the District of Columbia.

After a month of tracking the car with the device from a stash house to various customers in the D.C. area, the feds were eventually able to indict Jones on a wide variety of narcotics conspiracy charges. Jones was called a “drug kingpin” and a raid on his stash house netted almost 100 kilos of cocaine and nearly $1 million in cash, the Washington Post reported in 2007. Jones—by no means anyone’s definition of an upstanding citizen—was sentenced to life in prison.

But according to the Cornell University Law School’s summary of the case, officers screwed up the placement of the GPS device. They put the device on the car 11 days later, and in Maryland, not D.C. The device was, essentially, outside the bounds of the warrant. That led the D.C. Court of Appeals to overturn Jones’ conviction in 2010.

A year after that, the Supreme Court heard the case. Lawyers for the government argued that Jones had no reasonable expectation of privacy out on public roads, and therefore affixing a GPS tracking device to someone’s car is not a “search” at all—a search would trigger protections under the Fourth Amendment. That part is the key to this case, and the Atlantic sums up how that argument went:

Chief Justice Roberts asked Deputy Solicitor General Michael Dreeben the question on all nine of their minds: “You think there would ... not be a search if you put a GPS device on all of our cars, monitored our movements for a month?”

“The Justices of this Court?” Dreeben asked cautiously.

“Yes,” Roberts said.

Dreeben said “the Justices of this Court when driving on public roadways” have no reasonable expectation of privacy.

“So,” Roberts said, “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?”

Dreeben said yes.

All questions of whether a guy like Jones deserved to be in prison or not aside, the implications of such an argument are deeply chilling. And the court recognized this: they voted 9-0 to uphold the reversal of Jones’ conviction.According to this ruling, if law enforcement doesn’t get a warrant to track your car, the evidence gained from that would be inadmissible in court. (The court largely sidestepped the issue of whether Jones had a “reasonable expectation of privacy” or not, whether police can track a citizen on any level without a warrant.)

Though the justices were united in the decision, they did so for different reasons. Scalia, who authored the court’s majority opinion, acted in a way that reflected his own strict interpretation of the constitution: in seeking to preserve the Framers’ supposed intent of the Fourth Amendment when it was created, Scalia wondered if the 18th century colonial equivalent of this case would be a “constable” hiding in a suspect’s vehicle. From the opinion:

But it is almost impossible to think of late- 18th-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?)

Justice Samuel Alito seemingly scoffed at looking at this through an 18th century lens in a footnote, writing, “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.”

See? The Supreme Court does have a sense of humor. Sort of.

As for Antoine Jones, while the Supreme Court upheld the reversal of his conviction, prosecutors pressed on with their drug case—this time without using the GPS evidence. They still had a ton of additional evidence about his massive drug trafficking ring. Another trial ended in a hung jury, but then Jones accepted a plea deal in May 2013 for 15 years in federal prison.

Still, his case will have a lasting effect on law enforcement practices. Whether GPS tracker is the same as a tiny, tiny police officer hiding in your car or not, he needs a warrant to be there.