“In fact, it is the concurrence’s insistence on the exclusivity of the Katz test that needlessly leads us into ‘particularly vexing problems’ in the present case. This Court had to date not deviated from the understanding that mere visual observation does not constitute a search … We accordingly held in Knotts that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. Thus, even assuming that the concurrence is correct to say that ‘[t]raditional surveillance’ of Jones for a four-week period ‘would have required a large team of agents, multiple vehicles, and perhaps aerial assistance, our cases suggest that such visual observation is constitutionally permissible. It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but this present case does not require us to answer that question.
“And answering it affirmatively leads us needlessly into additional thorny problems. The concurrence posits that ‘relatively short-term monitoring of a person’s movements on public streets’ is okay, but that ‘the use of longer term GPS monitoring in investigations of most offenses is no good.’ That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search occurred depends on the nature of the crime investigated. And even that novelty, it remains unexplained why a 4-week investigation is ‘surely’ too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an ‘extraordinary offens[e]’ which may permit longer observation. What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these ‘vexing problems’ in some future case where a classic trespassory search is not involved and resort may be had to Katz analysis; but there is no reason for rushing forward to resolve them here.”
In addition to Justices Sotomayor and Alito, three other justices also agreed the majority should have applied the Katz test along with the historical trespass analysis. As the NACDL pointed out, “Justice Alito would have applied the privacy test instead of the trespass analysis stating that ‘the court reliance on the law of trespass will present particularly vexing problems involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked.’”
The NACDL endorsed similar concerns (non-trespass surveillance and access to third party records) raised by Justice Sotomayor. The Associate Justice wrote: “[A]s 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 ownership installed vehicle tracking devices or GPS-enabled smart phone. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion of property, the majority opinion’s trespassory test may provide little guidance. But ‘[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to the Katz analysis.’”
Justice Scalia represents the “cautious” approach for courts addressing electronic surveillance cases. “We’ll cross that bridge when we get to it,” is this classic approach. Be that as it may, we certainly have no problem with Justice Scalia applying