Supreme Court Unanimously Votes That You Can't be Tracked Via GPS Without a Warrant

"This case requires us to apply the Fourth Amendment's prohibition of unreasonable searches and seizures to a 21st-century surveillance technique...Ironically, the Court has chosen to decide this case based on 18th-century tort law....The Court argues-- and I agree -- that "we must 'assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.' But it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner?)" The footnote to this quote reads, "The Court suggest that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both -- not to mention a constable with incredible fortitude and patience."  (See, a joke! I told you this would be fun.)

Alito wrote that Scalia's decision was unwise and that the lengthy search itself violated the 4th and not just the physical violation as the Jeep in question was in a public place and not subject to reasonable expectation of privacy (the Harlan test.) "The Fourth Amendment protects people," he quoted Katz V. United States "not places."

Ginsburg, Breyer and Kagan joined in this opinion.

Based on the majority opinion, a trespass-based rule leaves open the window for the feds to track you via phone gps or in-car GPS providing that they don't affix anything to your vehicle/person. Alito continues, "First, the Court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches a great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation.) ...if long-term monitoring can be accomplished without committing a technical trespass-- suppose, for example, that the Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car -- the Court's theory would provide no protection." Later, Alito brings smart phones into the argument. (page 12)

 Read the entire decision here.

**Chief Judge Kozinski dissenting on Pineda: "There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it’s perfectly clear that he did not expect --and certainly did not consent -- to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism."