By Will Harris, Junior Editor
The Fourth Amendment to the United States Constitution protects citizens against unreasonable searches and seizures by the government, stating, “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures shall not be violated.” One of the main issues that arises when dealing with a search and seizure is whether or not the government conducted a search, and if not, whether or not the evidence obtained by the governments actions are admissible as evidence in criminal trials. As technology and means of communication and interactions have changed, the lines have become more and more blurred as to what constitutes a search by the police, as old rules seem to no longer apply, or are difficult to apply to modern modes of technology.
For a long time, the Court’s analysis of where or not there was a “search” was closely linked to the common law principles of trespass, and required some sort of physical intrusion. In Kyllo, the police used heat sensing devices, without a warrant, to obtain evidence that the defendant was growing marijuana inside his home. The Court determined that this did not constitute a search under the Fourth Amendment as there was not physical intrusion into the house and that this was simply an “off –the-wall” observation. However, while the physical intrusion test is still used when there is clearly a trespass, in cases where a trespass is more uncertain, courts have developed a reasonable expectation of privacy analysis. In Katz v. United States, the courts ruled that a violation occurred when the police obtained evidence through a wiretap placed on top of a public pay phone. The Court in Katz reasoned that the defendant in Katz exhibited an actual expectation of privacy and that the expectation was reasonable, and therefore the government had conducted a search when they obtained evidence through the wiretap. The Court said that Kyllo complied with Katz, because the evidence obtained in Kyllo was evidence that could also have been obtained through simple observation, for example, they could have simply seen snow melting at different rates on different points of the house indicating higher temperatures at those areas, which would have been consistent with the use of heat lamps to grow marijuana.
In 2012, the Supreme Court decided United States v. Jones, in which the court again used the trespass analysis exhibited in Kyllo. In Jones, the defendant was the owner of a nightclub, and was suspected of trafficking in narcotics. In order to obtain evidence the police placed a GPS monitoring device on the defendant’s Jeep while it was parked in a public parking lot, and then monitored the vehicle’s movement over the next 28 days. Although all members of the court agreed that this tactic constituted a search, and because it was not consistent with a search warrant the evidence was illegally obtained, the Justices were split as to the reasoning of why this constituted a search. The government argued that no search had occurred, because there is no reasonable expectation of privacy to the area of the car where the GPS was placed, because it was placed on the outside of the car.Four Justices however, agreed with Justice Scalia, saying that this was a search because it constituted a trespass on personal property. In a concurring opinion, four Justices, while agreeing with the outcome, argued that it was wrong to base the reasoning on 18th century tort law. This concurring opinion reasoned that this did constitute a search in violation of the Fourth Amendment; however, it did so using the “reasonable expectation of privacy” analysis presented in Katz.
Justice Sotomayor delivered the deciding vote on which line of reasoning would be used in the outcome of United States v. Jones.In her concurring opinion, Justice Sotomayor agreed with the opinion written by Justice Scalia, saying that a search had occurred where “the Government obtains information by physically intruding on a constitutionally protected area.” Therefore, the reasoning used in determining that the use of GPS to track the movement of a car was in violation of the Fourth Amendment was that it was a physical intrusion by the government and therefore a trespass. With increasing technology, this leaves many areas up to debate as to whether or not the government will be able to use information gained through different technology when not in compliance with a search warrant. For example, in Jones, the GPS used by the government was placed on the car by the government; however, many cars now come equipped with GPS devices that monitor cars movements. If the government gained information through a GPS device which the car owner knows is operating in the car, then there is clearly no physical intrusion. The question then would become whether or not this constituted a violation of a person’s reasonable expectation of privacy. Justice Alito’s concurring opinion clearly indicates that it would be a violation. Justice Alito goes on to discuss the emergence of different types of technology and Fourth Amendment issues they may pose, for example, cell phones and wireless devices that track the locations of the users. The concurring opinion suggests that the idea of a reasonable expectation of privacy will be constantly changing, stating “[t]he availability and use of these and other new devices will continue to shape the average person’s expectation about the privacy of his or her daily movements.” Justice Sotomayor’s concurring opinion, although she agreed with the trespass reasoning in this case, seems to suggest that even in cases where the individual knows their movements or phone records are being monitored, that there still may be a violation of a reasonable expectation of privacy. Justice Sotomayor states, “[m]ore fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in the information voluntarily disclosed to third parties.” From the dicta presented in the concurring opinions it appears that in the future, at least with respect to tracking a person’s movement, individuals would still have a reasonable expectation of privacy in things like GPS records, and therefore the government would need a warrant to obtain evidence from that information, however, that expectation of privacy may be changing with the emergence of new technology.
A further issue with the reasonable expectation of privacy arises with the ever changing methods of social media. There are numerous examples of police using fake Facebook accounts in order to obtain evidence and make arrests. In these instances, police officers are either searching open Facebook accounts or creating fake profiles to “friend” and gain access to private profile accounts, collecting evidence against suspects in this manner. It would seem that a person would not have a reasonable expectation of privacy with things they place on the internet, especially if they have opened their profile to other profiles, however, Justice Sotomayor, as well as those agreeing with Justice Alito’s concurring opinion, suggest that there still may be some debate as to the degree of privacy a person can expect in these situations. Of course, all of these situations can be avoided with compliance with a search warrant; however, issues with a person’s reasonable expectation of privacy arise when this information is obtained without a warrant or without complying with a warrant. As these situations become more common, and as technology continues to grow, it will be interesting to see the outcome of cases involving a person’s reasonable expectation of privacy and Fourth Amendment search and Seizures.
U.S. Const. amend. IV
See Kyllo v. United States, 533 U.S. 27 (2001).
Id. at 29.
Id. at 35.
Katz v. United States, 389 U.S. 347 (1967).
Id. at 348.
 533 U.S. at 43
 132 S. Ct. 945 (2012)
Id. at 948
Id. at 950.
Id. at 957 (Alito, J., concurring).
Id. at 964.
Id. at 954 (Sotomayor, J., concurring).
 132 S.Ct. at 963 (Alito, J., concurring).
Id. at 957 (Sotomayor, J., concurring).
 Elliott Jones, Fort Pierce Police use Facebook to Make Burglary Arrest, TCPalm (Jan 18, 2013, 10:16 AM), http://www.tcpalm.com/news/2013/jan/18/fort-pierce-police-use-facebook-to-make-burglary/.