A Unanimous Decision in D.C.

In today’s political climate, the above headline may sound a little like “man bites dog” or “Bengals win Super Bowl” – you know, really improbable stuff. But just yesterday, the United States Supreme Court unanimously ruled that attaching a GPS device to a car without a warrant violates the Fourth Amendment’s protection against unreasonable searches and seizures. Of course, even in a unanimous decision, there can be some cracks. Justice Scalia wrote the majority opinion. Justice Scalia and Thomas are “originalists” – they interpret the Constitution based exclusively on what the framers meant in 1789. That approach gets a little dicey when the court considers a GPS device – which, suffice to say, was not available in most stores in the late 1700’s. But for Justice Scalia, the question is really about trespass. And in his mind, attaching a GPS to a car is essentially a trespass, which makes it just as unreasonable now as it was in the Eighteenth century. But for Justice Alito, who wrote a concurring opinion joined by Justices Ginsburg, Breyer, and Kagan, Justice Scalia’s reliance on trespass – which inherently involves some sort of physical space – is potentially too limiting, and may not allow this holding to apply to less tangible intrusions in a wireless age. I don’t generally think of Justice Alito as a really funny guy, but he had a great footnote. He was noting that the only analogous conduct to a GPS in 1791 would have been for a constable to hide in a coach and remain there for a period a time. In a footnote, he then commented “this would have required either a gigantic coach, a very tiny constable, or both.” Zing. And while I think the court got this right, I tend to agree with Justice Alito. The decision may be a little narrower than it needs to be.