U. S. V. Jones: Inadequate to Promote Privacy for Citizens and Efficiency for Law Enforcement

I. INTRODUCTION 335II. REVIEWING U.S. V. JONES 336III. FOURTH AMENDMENT JURISPRUDENCE BEFORE JONES 339IV. JONES MUDDIES FOURTH AMENDMENT PROTECTIONS FOR THE FUTURE 342A. Non-Trespassory Location Monitoring 342B. Ubiquitous-Presence Technologies 344C. Intermittent-Monitoring technologies 346V. CONCLUSION 347I. INTRODUCTIONFive members of the Supreme Court held that when the government installed a Global Positioning System (GPS) device on Antoine Jones's car and used that GPS to monitor the vehicle's movements, it conducted a Fourth Amendment search.1 Justice Antonin Scalia delivered the majority opinion, which declared that by installing the GPS, the government trespassed on Jones's property for the purpose of obtaining information.2 Although the Court unanimously agreed on the judgment, Justice Samuel Alito argued that the government conducted a Fourth Amendment search by long-term GPS monitoring only because it violated Jones's reasonable expectation of privacy (REOP).1 * 3 Justice Sonya Sotomayor agreed with Justice Alito's argument regarding Jones's REOP, foreseeing the dangers of technology's encroachment upon privacy;4 however, she joined the majority holding on the issue of trespass.5This Note considers the trespass and REOP doctrines-part of Fourth Amendment jurisprudence-and argues that because the Scalia majority focused on physical trespass and did not insist on addressing whether the government violated Jones's REOP, the opinion is unduly narrow, unclear, and inadequate to protect citizens from unconstitutional government intrusions upon their persons and effects, arising from future technologies.II. Reviewing U.S. v. JonesIn 2004, law enforcement began investigating Jones for narcotics violations.6 The government installed a GPS on Jones's car without a valid warrant and tracked his movements twenty-four hours a day for four weeks.7 In 2008, based on the GPS evidence, Jones was sentenced to life in prison for conspiracy to distribute cocaine.8 In 2010, the D.C. Circuit overturned Jones's conviction, holding that the police unreasonably searched Jones because the search-conducted without a warrant-violated his REOP.9 In 2011, the Supreme Court granted certiorari to resolve, in part, whether warrantless use of the GPS on public streets violated the Fourth Amendment.10 *Because the Fourth Amendment proclaims "[t]he right of the people to be secure in their . . . effects,"41 and the intrusion of the GPS would have been considered a search of an "effect" at the time of the amendment's adoption,12 the majority held that it was a search.13 In support, Justice Scalia cited a line of cases dating back to 1765, in which Fourth Amendment protections were based on physical intrusion on private property.14The majority conceded that in the 1967 case Katz v. United States,'5 the Supreme Court stated that the "'Fourth Amendment protects people, not places.'"16 The majority further noted that the REOP test-providing that a violation occurs when a search intrudes upon a person's reasonable expectation of privacy-was first articulated by Justice Harlan in his concurrence in Katz.'1 However, the majority explained that Katz did not abandon the trespass theory, and that the Fourth Amendment continues to protect the enumerated areas ("persons, houses, papers, and effects") from trespass by the government.18 In his concurrence, Justice Alito criticized the majority for relying on two post-Katz cases to demonstrate that "a technical trespass is sufficient to establish the existence of a search. …