Supremes on Eyewitness ID and GPS Monitoring

English: The United States Supreme Court, the ...

Image via Wikipedia

It has been a slow “wordpress” year – so far.  I’ll be picking it up as time allows (but Spring is in the air!).

First case deals with eyewitness testimony.  I have to imagine there is a case with better facts out there regarding this…

Perry v. New Hampshire, 23 Fla. L. Weekly Fed. S60 (Jan 11, 2012):  J. Ginsburg filed the opinion of the court, J. Thomas concurred, and J. Sotomayor dissented.

Sticking with prior court precedent the court held that the Due Process Clause does not require a preliminary judicial inquiry into the reliability of an eyewitness identification when the identification was not procured under unnecessarily suggestive circumstances arranged by law enforcement.  J. Sotomayor disagrees and goes through a well reasoned dissent however this was the wrong case.  Here the eyewitness was simply asked if they knew who it was that was trying to break into vehicles and she moved to a window (the one from which she had observed the defendant initially) and pointed to the defendant standing by the police officer.  It was dark and she could not identify the defendant in a photo line-up later when asked.  However, when police arrived they found the defendant with car speakers in hand, etc. and so on.  This case just had bad facts for Sotomayor’s argument.  If another more egregious case makes it to the Court, her dissent may carry the day.


This next case deals with GPS monitoring of suspects without a warrant.  Law enforcement in this case did obtain a warrant but it required them to install the GPS within 10 days of the warrant.  The GPS was installed on day eleven.

United States v. Jones, 23 Fla. L. Weekly Fed. S102 (Nov 8, 2011): SCALIA, J., delivered the opinion of the Court, in which ROBERTS, C. J., and KENNEDY, THOMAS, and SOTOMAYOR, JJ., joined. SOTOMAYOR, J., filed a concurring opinion. ALITO, J., filed an opinion concurring in the judgment, in which GINSBURG, BREYER, and KAGAN, JJ., joined.

J. Scalia: We decide whether the attachment of a Global-Positioning-System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment. The Fourth Amendment provides in relevant part that “[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick, 433 U.S. 1, 12 (1977). We hold that the Government’s installation of a GPS device on a target’s vehicle,2 and its use of that device to monitor the vehicle’s movements, constitutes a “search.”
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. Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure. Lord Camden expressed in plain terms the significance of property rights in search-and-seizure analysis:

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Entick, supra, at 817.

J. Sotomayor: Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring — by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track — may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas-Perez, 640 F. 3d 272, 285 (CA7 2011) (Flaum, J., concurring).

J. Alito: This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law. By attaching a small GPS device to the underside of the vehicle that respondent drove, the law enforcement officers in this case engaged in conduct that might have provided grounds in 1791 for a suit for trespass to chattels. And for this reason, the Court concludes, the installation and use of the GPS device constituted a search. Ante, at 3-4.

This holding, in my judgment, is unwise. It strains the language of the Fourth Amendment; it has little if any support in current Fourth Amendment case law; and it is highly artificial.

I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.

Leave a Reply

Your email address will not be published. Required fields are marked *

%d bloggers like this: