Does a more careful reading of the Supreme Court’s decision in U.S. v. Jones turn up a lurking victory for the government?
Modern media moves so fast that the second-day story happens in the afternoon of the first. The Supreme Court ruled unanimously Monday morning that government agents conduct a Fourth Amendment search when they place a GPS device on a private vehicle and use it to monitor a suspect’s whereabouts for weeks at a time. Monday afternoon, a couple of commentators suggested that the case is less a win than many thought because it didn’t explicitly rule that a warrant is required to attach a GPS device to a vehicle.
Writing on the Volokh Conspiracy blog, George Washington University law professor Orin Kerr noted “What Jones Does Not Hold.”
The Court declined to reach when the installation of the device is reasonable or unreasonable. … So we actually don’t yet know if a warrant is required to install a GPS device; we just know that the installation of the device is a Fourth Amendment “search.”
And over on Scotusblog, Tom Goldstein found that “The Government Fared Much Better Than Everyone Realizes”:
[D]oes the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.
So there is a constitutional search when the government attaches a GPS device to a vehicle, but the Court conspicuously declined to say that such a search requires a warrant. Do we have an “a‑ha” moment?