A co-called conservative Supreme Court moved the needle on the freedom meter in the correct direction this past week in a case involving police surveillance of an unsympathetic criminal suspect.
Antoine Jones was suspected of illegal drug activity, enough so that police obtained a warrant to attach a global positioning system (GPS) tracking device to his car. The warrant authorized the GPS device to be attached in the District of Columbia within 10 days.
Police attached the device in Maryland on the 11th day, meaning they failed to comply with the warrant. Nevertheless, they collected data from the GPS device, which the government used to convict him. A federal appeals court reversed the conviction based on failure to follow the warrant.
FBI agents were involved, so the federal Department of Justice argued the case against Jones. DOJ didn’t just argue mere technicalities; it made a broader, Orwellian argument that police don’t even need a warrant to attach a GPS device to a car. There is no Fourth Amendment expectation of privacy when driving a vehicle in public, they claimed.
Justice Antonin Scalia, considered by many to be a law-and-order conservative, wrote the majority opinion. While the decision in favor of Jones was unanimous, the conservative Justice Sam Alito, joined by three liberal justices, issued a separate opinion with their reasons.
Liberals critical of the original-intent, constitutional conservative movement, claiming it to be “regressive,” may want to take note of Justice Scalia’s majority opinion. It shows that original intent is actually . . . quite progressive.
And, any law-and-order conservatives who view the Fourth Amendment as the criminal-coddling, unwanted stepchild of the Bill of Rights since the days of the liberal Warren Court of the 1950s and 60s, may want to read the Scalia opinion. It’s robustly and emphatically Scalia.
The Fourth Amendment protects against unreasonable searches and seizures of “persons, houses, papers, and effects.” The Fourth Amendment also requires a process requiring that warrants be issued only “upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”
The word “privacy” appears nowhere in the Fourth Amendment.
Justice Scalia explains that the Fourth Amendment’s “expectation of privacy” is a creation of the courts to supplement the amendment’s original protections of people and property.
There are, of course, privacy issues in our persons and property, but to guard privacy to the exclusion of private property rights is to deviate from the words, purposes and protections of the Fourth Amendment, notes Scalia.
The exclusionary rule, whereby evidence seized in violation of the Fourth Amendment is inadmissible at trial, was expanded but not created by the Warren Court. Some law-and-order conservatives still hold a grudge against the rule.
No fan of the exclusionary rule, Scalia nevertheless didn’t balk in the Jones case. Instead, he discusses the 18th century view that unlawful government searches were a form of trespass, just like a private individual entering your home without your consent.
The opinion was especially timely. The same day it was issued, Senator Rand Paul, R–KY, was detained by TSA agents at an airport. Unlawful detention is a form of what lawyers call a trespassory tort.
Justice Scalia is a keen observer of trends against liberty. One current trend is a police state growing out of control.
Emphasizing his view of original meaning, he writes that courts “must provide at a minimum the degree of protection [the Fourth Amendment] afforded when it was adopted.”
The Fourth Amendment is a check against tyrannical government. It’s the principal law governing police powers.
Scalia’s opinion is also noteworthy for explaining how courts have reduced liberty by substituting court-made doctrine for the Constitution’s original intent. His opinion is both push back and a warning against the growing threat of the police state: America has been there; done that. Original intent benefits people today.
Conservatives should also tip their hat to Obama-appointee Justice Sotomayor, who sided with the majority but wrote a concurring opinion for the information age.
The libraries, homes and merchant offices of the Founders had far less data than a teenager has in his or her cell phone’s microchip.
Sotomayor noted that it may be time to correct past judicial decisions deviating from Fourth Amendment protections against government intrusion into information shared among private parties.
She wrote: "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties."
Seems like the justices are looking forward by peeking back.
Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government: Reclaiming The Constitution From Usurpers And Society’s Biggest Lawbreaker.
