Last week I was explaining to a friend the Supreme Court’s decision in United States v. Jones, the case where the Government  installed a GPS device to monitor an alleged drug dealer’s vehicle over the course of 28 days. After exhaustively covering the three opinions, my friend had this remark, “why didn’t they just get a warrant?”

That comment got me thinking. At the very core of Jones is the same century-old struggle of power; the struggle between the Government’s convenience and the Constitution’s claim to privacy, with the winner usually being determined by what the Supreme Court defines as reasonable.

NYU Professor Barry Friedman acknowledged this power struggle today in a New York Times op-ed. Friedman said:

Focusing on public expectations of privacy means that our rights change when technology does. As Justice Alito blithely said: “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

But aren’t constitutional rights intended to protect our liberty even when the public accepts “increased convenience or security at the expense of privacy”? Fundamental rights remain fundamental in the face of time and new inventions.

This power struggle wasn’t as apparent in the Jones opinion because contrary to what most of the public thinks, Jones did not decide the question of whether the Fourth Amendment allows the Government to use GPS devices when conducting criminal investigations (a point that was missed by many, as Tom Goldstein pointed out). The Court only decided that when the Government does perform GPS monitoring, and only for an extended amount of time, it then constitutes a search.

But the tension between Government convenience and Fourth Amendment privacy will be on full display when the Court does get around to deciding whether this type of search requires a warrant. When the Court does take up such a case, perhaps the best question to ask is why would the Government need the ability to monitor with GPS devices, without the simple expedient of obtaining a warrant. Put differently, why does the Government need the ability to exercise more power without any oversight? People forget, because the Fourth Amendment is cluttered with so many exceptions, that the unreasonable searches and seizures provision has a strong preference for warrants, for judicial oversight to act as a buffer between the people and overreaching government.

It seems to me that the Government could easily obtain enough evidence through normal investigational monitoring to secure a warrant when it wishes to monitor (and now search) a citizen with a GPS device for long or short periods of time. Shouldn’t that fact  be almost decisive in whether or not the search requires a warrant?

I went back and read the Government’s briefs in Jones. What I found was not surprising. The Government in fact had obtained a warrant to place the GPS device on Jones’ vehicle. But the warrant only allowed them to do so for 10 days and for some reason (the briefs don’t mention why), they waited until the 11th day to do so. 

Why didn’t they just go get another warrant? Power makes people do strange things (like sheriffs deliberately violating property rights), which is exactly why our constitutional protections need to remain robust. So even government has to play by some rules.