Monday, February 13, 2012

Some Interesting Recent Decisions

Supreme Court Rules Attaching GPS Device to Car Is a Search; Case Is “Big Loss” for U.S. (ABA Journal, 23 Jan 2012) - The U.S. Supreme Court has ruled for a drug defendant who argued that police should have obtained a warrant before attaching a GPS device to his car to monitor his movements. Justice Antonin Scalia wrote the opinion for a court that was unanimous in its finding that the police conduct was a search within the meaning of the Fourth Amendment. SCOTUSblog initially called the decision “a big loss for the federal government.” The case, United States v. Jones, is an appeal by Antoine Jones, who was convicted of conspiracy to distribute cocaine after police installed a GPS device on his Jeep Grand Cherokee. Scalia’s opinion was joined in full by Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor. “It is important to be clear about what occurred in this case,” Scalia said. “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.” Scalia said Fourth Amendment jurisprudence was tied to the common law tort of trespass, at least until the latter half of the 20th century. The justices disagreed over analysis and whose interpretation offered a broader or more flexible interpretation of the Fourth Amendment. Justice Sonia Sotomayor wrote a concurring opinion embracing both Scalia’s analysis and a privacy-expectation test espoused by Justice Samuel A. Alito Jr. and three justices in the court’s liberal wing. Sotomayor wrote that a search occurs “at a minimum” when the government physically intrudes on a constitutionally protected area. Even in the absence of a trespass, she said, the Fourth Amendment is implicated when there is a violation of a suspect’s reasonable expectation of privacy. The American Civil Liberties Union applauded the decision in a press release. It includes this quote from ACLU legal director Steven Shapiro: “Today’s decision is an important victory for privacy. While this case turned on the fact that the government physically placed a GPS device on the defendant’s car, the implications are much broader. A majority of the court acknowledged that advancing technology, like cell phone tracking, gives the government unprecedented ability to collect, store and analyze an enormous amount of information about our private lives. Today’s decision suggests that the court is prepared to address that problem. Congress needs to address the problem as well.” Alito endorsed the reasonable-expectation-of-privacy test in an opinion concurring in the judgment. He took issue with Scalia’s analysis, accusing him of relying on the tort law of trespass as it existed in the 18th century. Alito’s opinion was joined by Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan. “If longterm 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,” Alito wrote. Scalia responded to Alito and criticized his reliance on Katz v. United States, which found a Fourth Amendment violation when police attached a listening device to the outside of a phone booth. “The concurrence begins by accusing us of applying “18th-century tort law,” “ Scalia wrote. “That is a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-of-privacy test, even when that eliminates rights that previously existed.” [Thorough analysis by Prof Dan Solove here.]

Federal Judges Wary of Facebook, Twitter, Google+ Impact on Juries (Network World, 25 Jan 2012) - The impact of social media such as Twitter, Facebook and Google+ and others on federal juries is a concern that judges are frequently taking steps to curb. According to a study 94% of the 508 federal judges who responded said they have specifically barred jurors from any case-connected use of social media. The Federal Judicial Center was asked by a committee of the policy-making Judicial Conference of the United States to survey all 952 federal judges, of whom 53% responded on the issue. “The most common strategy is incorporating social media use into jury instructions - either the model jury instruction provided by (the Conference’s Committee on Court Administration and Case Management) or judges” own personal jury instructions,” the report said. “Also common are the practice of reminding jurors on a regular basis not to use social media to communicate during trial or deliberations, explaining the reasons behind the ban on social media, and confiscating electronic devices in the courtroom.” Some of the findings from the study included

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