The Common Law #15

The Common Law #15
(The following column was originally published in January, 2012.)

The Common Law:

By N. Bob Pesall 
Attorney At Law 
Flandreau, SD 

Boiled down, constitutional rights govern how far your government can intrude on your business. For example, both our state and federal constitutions prohibit unreasonable searches and seizures. (This has been covered in earlier columns.) As our daily lives get more complicated, mixed-up, and electronic, however, it gets harder and harder to figure out what is “reasonable” and what is not.

This was the problem in United States v. Jones, handed down by the Supreme Court on January 23, 2012. Supreme Court decisions are the last word on constitutional issues, so when they rule on basic rights questions, those rulings can have a big impact on our daily lives.

In this case Jones was a drug dealer. Police suspected him, but could not prove it yet. So they put a GPS tracking device on Jones' car. They did not get a valid warrant first. They tracked him, 24 hours a day, 7 days a week, for four weeks. By doing this, they were able to connect him to other drug dealers, and over 90 kilos of cocaine. Eventually, that GPS evidence made it possible for the government to convict him. Jones was sentenced to life in prison.
Jones appealed. He argued that attaching a GPS unit to his car, and tracking him for 28 straight days, without a warrant, was not only creepy, but was also an unreasonable search. The government argued that this was not a search. The car's movements were not private. Anyone could have watched him drive around on public roads. This fact did not change simply because police used a GPS device instead of having a live officer do it.

The government's argument was, on the whole, pretty good. For the last several decades, unreasonable search cases like this turned on whether police violated a person's "reasonable expectations of privacy." The rule said that if there was no intrusion on your reasonable expectations of privacy, there was no search, and no constitutional violation. Although it would be creepy to follow someone around for 28 days, driving down the highway is not exactly a private act.

The Supreme Court, however, took a deeper look at the question. It went back to our early understandings of search and seizure law, closer to the time when the constitution was written. Back then, most people were focused on property rights, not privacy rights. In those cases, searches were considered illegal when police trespassed on private property. Since the constitution itself has not been changed, the Court concluded, those property-based rulings still applied.

So what does this mean for GPS units? GPS units did not exist when the constitution was written, so the Court got a little creative. It reasoned that, 200 years ago, police might have secretly hidden an officer inside your carriage and recorded your movements that way. This intrusion would surely have been considered an illegal search. The same would be true of a GPS unit being stashed in your car. 

Because of this, the Court held that the use of a GPS in Jones' case was a search, and his conviction was overturned. Ultimately, the Court ruled, TWO ways that police could conduct an unreasonable search. They can either violate reasonable expectations of privacy, or trespass on private property. If police do either without a warrant, the results of their searches, and the convictions they obtain as a result, can be thrown out. 

So what does that mean for us here in South Dakota? My local police tell me that GPS units are expensive. Larger cities and federal officers may have them, but until prices go down, most police will have to do their jobs the old-fashioned way, with human beings. This is probably for the best. Either way, we can be comforted to know that our constitutions still protect our property, even in this modern electronic age.
The foregoing column is written for informational purposes only. It does not constitute legal advice. Article 6 Section 11 of the South Dakota Constitution, and the Federal Fourth Amendment cover illegal searches and seizures. N. Bob Pesall can be reached at P.O. Box 23, Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at