One step forward, two steps back (Scalia is retarded)

Most laymen normal people take the law as it comes, while law students and lawyers have stupid thoughts like, “I like the result, but don’t agree with the reasoning.”  Many times during my law school career I agreed with outcomes but not reasoning---or with reasoning and not outcomes.  The Supreme Court just wrote one of those opinions wherein they found that GPS tracking of vehicles constitutes a search for 4^th Amendment purposes and requires search warrant.  Duh, right.  Well, previous cases had found that GPS tracking devices were not searches because people did not have a reasonable expectation of privacy in the location of their cars.  Police could simply follow the car instead, and so GPS devices did little to alter the privacy concerns. 

The Law (Its Katz, not Cats)

The 4^th Amendment protects citizens from unreasonable searches and seizures by government actors.  However, not everything is considered a search.  Before 1967, the 4^th Amendment was construed as protecting places—areas that were deemed private.   In the 1967 decision, Katz v. United States, the Supreme Court changed the definition of search for 4^th Amendment purposes—stating that “The fourth amendment protects people not places.”  The concurrence in the decision gave us what is now the test for whether or not government conduct amounts to a search—that is whether or not a person has a “reasonable expectation of privacy.”  Katz shifted the focus from places to people and to an understanding of privacy interests more than property interests.  Subsequent cases have fleshed out exactly what that means, but they have been rather consistent in their reasoning.  In this case, Scalia wrote an opinion—properly finding that a GPS device attached to a car amounts to a search—but stated, “"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 4th Amendment when it was adopted."  But, being Scalia, he did acknowledge the existence of the “reasonable expectation of privacy” test, just failed to apply it.  Oh boy.  Even Justice Alito in his concurrence noted that Scalia was wrong—in that Katz had done away with any physical intrusion analysis. 

The problem is that application of bad law—even if it gets the right result may result in a shift back towards a physical space formulation for 4^th Amendment analysis in the future.  Let’s hope not.  In the meantime here is the very long read and drive free of warrantless GPS devices.