ANOTHER VICTORY FOR PRINCIPLE
Last week I explained how the Supreme Court had defended the right of a church to fire a minister, relying on original principles underlying the First Amendment Religion Clauses (the free exercise and establishment clauses). This week I am pleased to report on another Supreme Court decision that stands as a victory for principle: United States v. Jones (decided January 23, 2012). In Jones, the Supreme Court relied on original principles underlying the Fourth Amendment prohibition against unreasonable searches to hold an FBI/local police attachment of a GPS tracking device to a car unconstitutional. This return to original principles is an essential pivot by the Court and may signal a movement to restore the Founding Fathers’ republic.
The Fourth Amendment to the United States Constitution reads: “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
In Jones, the Government (the FBI and the Metropolitan Police of the District of Columbia) attached a GPS tracking device to a car and monitored the car’s whereabouts. The Government suspected that the car’s owner, Antoine Jones, was engaged in illicit narcotics transactions in the District of Columbia and surrounding areas. Although the Government obtained a warrant, by the time the GPS device was attached to the car, the warrant had expired. Moreover, the Government attached the GPS in Maryland, outside the jurisdiction (the District of Columbia) where the warrant authorized the attachment. The United States District Court granted, in part, a pre-trial motion to suppress the GPS obtained evidence on the basis that it violated the Fourth Amendment prohibition on unreasonable searches. The District Court held that the data gathered from the GPS device while the car was parked in a garage adjacent to Jones’ residence violated the Fourth Amendment, but that the data gathered from the GPS device while the car drove on the public streets was admissible. That Court relied on precedent stemming from Katz v. United States in which the Supreme Court held that no Fourth Amendment violation would occur without proof that the person searched had a “reasonable expectation of privacy.” The District Court in Jones held that a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” and, so, it allowed data obtained by the GPS from transportation on public streets to be admitted into evidence. Although the initial trial of Jones ended in a hung jury, the Government retried Jones and secured a conviction on the second attempt. He was sentenced to life in prison.
Jones appealed the decision, and the United States Court of Appeals for the D.C. Circuit reversed the conviction without reaching the Fourth Amendment privacy issue, holding that because a car is an “effect” within the meaning of the Fourth Amendment and because the search was warrantless (the GPS device having been attached after the warrant expired and in the wrong jurisdiction), the Fourth Amendment was violated.
Justice Scalia wrote the opinion for a unanimous Supreme Court in review of the Court of Appeals’ decision. He defined the issue consistent with the Founding Fathers’ conception of the Fourth Amendment: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Suddenly, and profoundly, the Court focused on the original understanding of a constitutional provision, revivifying the Founding Fathers’ principles that have for so long been relegated to a condition of exile (to paraphrase United States Court of Appeals Judge Douglas Ginsburg). Scalia reverted to the property rights ideological basis underlying the Fourth Amendment, the amendment’s essential common law trespass foundation. He wrote: “The text of the Fourth Amendment reflects its close connection to property . . . . Consistent with this understanding, our Fourth Amendment jurisprudence was tied to common-law trespass, at least until the latter half of the 20th Century.”
Without abandoning the precedent from the mid to late 20th Century (holding Fourth Amendment protection present when the Government invades areas in which there is a reasonable expectation of privacy), Scalia expanded the protective compass of the amendment to embrace the original understanding, writing: “What we apply is an 18th century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection [the Fourth Amendment] afforded when it was adopted.” The Court therefore affirmed the judgment of the United States Court of Appeals for the D.C. Circuit, reversing Jones’ conviction.
United States v. Jones marks another instance in which the Supreme Court has based its decision on the original understanding of constitutional provisions in issue. Earlier in the month of January, the Court restored original meaning to the Religion Clauses by denying the EEOC the power to second guess a church congregation’s decision to fire a minister. In United States v. Jones, the Court likewise restored the original meaning of the Fourth Amendment by denying federal and state police the power to attach a GPS device without a warrant to the vehicle of a suspected criminal, re-establishing the common law trespass foundation to the Fourth Amendment.
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The two decisions stand as victories for principle and bode well for the future. Although the Court, particularly in the Jones’ decision, reveals ideological divides among its members, there is an unmistakable movement afoot to restore the Founding Fathers’ understanding of the meaning of constitutional provisions. If that movement continues, the Court will be well-positioned to help restore the government to the limited federal republic of the Constitution’s design (from the unlimited bureaucratic oligarchy it has become since the 1930’s). Individual liberty and prosperity depend on that restoration.
� 2012 Jonathan W. Emord - All Rights Reserved