Six-Month Monitoring Of a Suspected Terrorist

SUSPECTED DRUG TRAFFICKER

The case began in 2005 when police officers went to a public parking lot in Maryland and secretly installed a GPS device on a Jeep Grand Cherokee used by a Washington, D.C. nightclub owner, Antoine Jones.

Jones was suspected of drug trafficking and the police tracked his movements for a month. The resulting evidence played a key role in his conviction for conspiring to distribute cocaine.

The appeals court had thrown out Jones's conviction and his life-in-prison sentence, and ruled prolonged electronic monitoring of the vehicle amounted to a search.

All nine justices agreed in upholding the appeals court decision, but at least four justices would have gone even further in finding fault not only with the attachment of the device, but also with the lengthy monitoring.

In summarizing the court's majority opinion from the bench, Justice Antonin Scalia said attachment of the device by the police was a trespass and an improper intrusion of the kind that would have been onsidered a search when the Constitution was adopted some 220 years ago.

The administration argued that even if it were a search, it was lawful and reasonable under the Constitution. Scalia said his opinion did not decide that issue and some more difficult problems that may emerge in a future case, such as a six-month monitoring of a suspected terrorist.

Joining Scalia's opinion were Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

Sotomayor wrote separately to say the case raised difficult questions about individual privacy expectations in a digital age, but said the case could be decided on narrower grounds over the physical intrusion in attaching the device.

LONG-TERM MONITORING

Justice Samuel Alito wrote a separate opinion that Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan joined. He wrote that he would have decided the case by holding that Jones's reasonable privacy expectations were violated by long-term monitoring of his vehicle's movements.

Alito said in recent years many new devices have emerged that track a person's movements, including video surveillance in some cities, automatic toll collection systems on roads, devices on cars that disclose their location, cell phones and other wireless devices.

"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," he wrote.

One law professor said those four justices were clearly concerned about the potential impact of new technologies and believed extended monitoring likely required a warrant so law enforcement should "be on the safe side and get a warrant."

"This is an indication that there are justices who are recognizing that privacy norms are shifting but the fact that people's lives take place increasingly online does not mean that society has decided that there's no such thing as privacy anymore," said Joel Reidenberg, a law professor at Fordham University in New York.