I'm a fan of the decision, but I think Alito's analysis is better than Scalia's.

 

Originally Posted by Justice Alito in his concurring opinion

This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass
to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search.

This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial. I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

Link to the decision.

Sotomayor also does a good job of explaining why the majority's characterization of the case may prove problematic.

 

Originally Posted by Justice Sotomayor in her concurring opinion

The trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.

Nonetheless, as JUSTICE ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance.

Scalia's arguments almost always make sense because he's a master argumentator, but you've got to read between the lines to realize what he fails to mention/address in his opinion(s). I think Sotomayor does a great job of pointing out that, under Scalia's framing of the issues, only physical intrusion is protected as an unreasonable search, meaning the government can still conduct surveillance using factory or owner-installed vehicle tracking devices or GPS-enabled smartphones.

Sotomayor is basically saying that the majority opinion only covers this narrow instance - where the government physically attaches a tracking device to the car - but does not cover instances in which the government may monitor tracking devices that were not physically attached by the government.

Examples of factory-installed vehicle tracking devices:
- Navigation systems installed by car companies.
- Tracking devices installed by car companies, like OnStar.
- Any device installed by the manufacturer that could give a vehicle's position and movement (there are probably many being developed atm, especially for anti-theft purposes).

Examples of owner-installed vehicle tracking devices:
- Navigation systems such as Garmin, TomTom, etc.
- Any device installed by the vehicle's owner that could give the vehicle's position and movement.

And then there's GPS-enabled smartphones, which are pretty self-explanatory.

 

Originally Posted by Purple Jesus

Sotomayor is basically saying that the majority opinion only covers this narrow instance - where the government physically attaches a tracking device to the car - but does not cover instances in which the government may monitor tracking devices that were not physically attached by the government.

Examples of factory-installed vehicle tracking devices:
- Navigation systems installed by car companies.
- Tracking devices installed by car companies, like OnStar.
- Any device installed by the manufacturer that could give a vehicle's position and movement (there are probably many being developed atm, especially for anti-theft purposes).

Examples of owner-installed vehicle tracking devices:
- Navigation systems such as Garmin, TomTom, etc.
- Any device installed by the vehicle's owner that could give the vehicle's position and movement.

And then there's GPS-enabled smartphones, which are pretty self-explanatory.

Still don't understand. Why isn't it the consumer's responsibility to ensure that he isn't transmitting information into the public domain? If I speak on my cellphone out in public it is known that one can monitor such communication via scanner. So why isn't it the responsibility of the consumer to demand a cell phone with the appropriate encryption technology to ensure that conversation remains private? All your examples require consent from the property owner for such devices to be attached. As for my "GPS-enabled smartphone", I ensure that I have it set to not constantly track my location. I only turn that feature on when I need use of the GPS.

Also, its pretty clear that this ruling doesn't matter at all. After all, I can find a Supreme Court case that says government can forcibly steralize "undesirables" as well...

 

Originally Posted by Lord Supremo

Also, its pretty clear that this ruling doesn't matter at all. After all, I can find a Supreme Court case that says government can forcibly steralize "undesirables" as well...

It matters for practical sake, not for philisophical sake as we already had this right. Rights don't change. All that changes is how far the state infringes upon those rights. Because the Supreme Court has an affect on the degree of that infingement, this is an important case.

 

Originally Posted by threeven

fwiw it doesn't really matter if you turn GPS off, they don't need it to track you. As long as you have cell service you can be tracked. GPS just makes it a bit more accurate.

Really? Just "a bit"? Kind of depressing. How much of a difference does it make? From knowing what house you are at to? neighborhood? city?

Dyz: if you agree with a property rights approach then would you overturn Katz? FWIW I teach constitutional criminal procedure at a local university and cannot wait to talk about this on Wednesday. Especially since I just got done telling my class last week that a warrant was not required to GPS vehicles.

I'm not sure I agree with the Court on this one.

 

Originally Posted by gosalukis83

Dyz: if you agree with a property rights approach then would you overturn Katz? FWIW I teach constitutional criminal procedure at a local university and cannot wait to talk about this on Wednesday. Especially since I just got done telling my class last week that a warrant was not required to GPS vehicles.

I'm not sure I agree with the Court on this one.

Well after reading the wiki to brush up on it I would have one question, did the FBI get permission from the owner of the phone booth to alter the phone booth? If they did then I agree with Hugo Balck's dissent and would favor overturning it. If they didn't then I would argue that the government has no right to mess with someone's property, even in a case where they are pursuing a third party, except under more extreme cases such as chasing a fleeing suspect across private property.

 

Originally Posted by Purple Jesus

In what way? Please elaborate.

In the sense that while you are driving your car you are essentially broadcasting your private actions in a public manner. It would not be unconstitutional for the police to tail a person 24/7 as a way to track activities.

I can see an argument that you "assume the risk" when you open up your actions to 3rd parties. For example, you cannot speak in a private setting in earshot of a third party and assume your conversation will remain private.

 

Originally Posted by threeven

Same neighborhoodish.

I bet its better then that. My Iphone is pretty damn accurate with map apps., but not sure if they can get same from my phone off of the towers.

 

Originally Posted by gosalukis83

In the sense that while you are driving your car you are essentially broadcasting your private actions in a public manner. It would not be unconstitutional for the police to tail a person 24/7 as a way to track activities.
.

I agree with Sotomayor's response to this. It is true that in any one trip you make in your car, you are exposing yourself to the risk that someone, including the government, will see what you are doing, follow you to wherever you're going, make conclusions about that, and the like. However, it also seems to be true that there is a reasonable expectation that the totality of your movements over a long period of time enjoy a certain degree of privacy because no one could reasonably track you for that long. In this case, the guy who they put a GPS device on was perfectly tracked for four weeks. As Sotomayor says, before the advent of GPS technology it would have taken a heap of policemen working out of multiple vehicles with aerial support to get that sort of information about somebody. Because of that, you could have security in the knowledge that the totality of your movements were private because the cost of obtaining that information would be prohibitively high. I suppose its true that this is no longer the case and that everyone knows this is no longer the case, but I'm not comfortable with the idea that the advance of technology means the government suddenly has incredible new rights to surveillance without judicial oversight.

Shit, if this ruling had come down 10 years ago, D'Angelo Barksdale might still be alive now.

 

Originally Posted by ltquick

Shit, if this ruling had come down 10 years ago, D'Angelo Barksdale might still be alive now.

 

Originally Posted by Lord Supremo

I'm not comfortable with the idea that the advance of technology means the government suddenly has incredible new rights to surveillance without judicial oversight.

This pretty much sums up my philosophical stance on the subject. Well put.

 

Originally Posted by Purple Jesus

This pretty much sums up my philosophical stance on the subject. Well put.

While I agree with the fears I just don't see where my questions have been answered. Can someone give me an example of how government would force or coerce the private markets to allow monitoring of its population in a system that protects the sanctity of private property? I'm not totally closed minded here. As I've said before, part of the reason I like to debate is to strengthen or shatter my belief in something as I test the arguments I believe to be true. Show me how I am wrong here.