Legal Case Summary

We'll hear argument first this morning in case 10, 1259 United States versus Jones. Mr. Dredin. Mr. Chief Justice, and may it please the Court. Since this Court's decision in Katz versus United States, the Court has recognized a basic dichotomy under the Fourth Amendment. What a person seeks to preserve as private in the enclave of his own home, or in a private letter, or inside of his vehicle when he is traveling, is a subject of Fourth Amendment protection. But what he reveals to the world, such as his movements in a car on a public roadway, is not. In Knotz versus United States, this Court applied that principle to hold that visual and beeper surveillance of a vehicle traveling on the public roadways, infringed no Fourth Amendment expectation of privacy. Knotz, though, seems to me much more like traditional surveillance. You're following the car, and the beeper just helps you follow it from a slightly greater distance. That was 30 years ago. The technology is very different, and you get a lot more information from the GPS surveillance than you do from following a beeper. The technology is different, Mr. Chief Justice, but a crucial fact in knots that shows that this was not simply amplified visual surveillance is that the officers actually feared detection in knots as the car crossed from Minnesota to Wisconsin. The driver began to do certain U-turns, and the police broke off visual surveillance. They lost track of the car for a full hour. They only were able to discover it by having a beeper receiver in a helicopter that detected the beeps from the radio transmitter in the can of Claude. That's a good example of the change in technology. That's a lot of work to follow the car. They've got a list of the beeper when they lose it. They've got a call in the helicopter. Here, they just sit back in the station and then they push a button whenever they want to find out where the car is. They look at data from a month and find out everywhere it's been in the past month. That seems to me dramatically different. But it doesn't expose anything, Mr. Chief Justice, that isn't already exposed to public view for anyone who wanted to watch. And that was the crucial principle that the Court of Lines had. Well, how do that rationale could you put a beeper serve, particularly, on the man's overcoat or support coat? Probably not, Justice Kennedy

. And the reason is that this Court in caro versus United States, United States versus caro specifically distinguished the possibility of following a car on a public roadways from determining the location of an object in a place where a person has a reasonable expectation. I have a special device that measures only streets and public elevators and public buildings. In that event, Justice Kennedy, there is a serious question about whether the installation of such a device would implicate either a search or a seizure. But if it did not, the public movements of somebody do not implicate a sea. Well, at that matter's point, you might just be aware that I have serious reservations that there wasn't, that there about the way in which this beeper was installed. But you can get to that at your convenience. Mr. Drehmann, I'd like to get to it now. Happy to you, Your Honor. I have to give a little prologue to my question. When wiretapping first came before this Court, we held that it was not a violation of the Fourth Amendment, because the Fourth Amendment says that the people shall be secured in their persons, houses, papers, and effects against unreasonable searches and seizures. And wiretapping just picked up conversations. That's not persons, houses, papers, and effects. Later on, we reversed ourselves. And as you mentioned, cats established the new criterion, which is there an invasion of privacy. Does, are you obtaining information that a person had a reasonable expectation to be kept private? I think that was wrong. I don't think that was the original meaning of the Fourth Amendment, but nonetheless, it's been around for so long. We're not going to overrule that. However, it is one thing to add that privacy concept to the Fourth Amendment, as it originally existed. And it is quite something else to use that concept to narrow the Fourth Amendment from what it originally meant. And it seems to me that when that device is installed against the will of the owner of the car, on the car, that is unquestionably a trespass. And thereby rendering the owner of the car not secure in his effects. The car is one of his effects against an unreasonable search and seizure. It is attached to the car against his will, and it is a search because what it obtains is the location of that car from there forward. Now, why isn't that correct? Do you deny that it's a trespass? It may be a technical trespass, but it was equally a technical trespass in the United States versus Carol when a can of ether was transferred to somebody that had, and it had a radio transmitter. But the owner of the can, at the time it was installed, the consented. And that is not this case. There is no consent by the owner of the property to which this device was affixed

. In fact, it was done as Justice Scalia indicated surreptitiously. But there was no consent to the owner of the can once he acquired it to have it contain a foreign item installed by the government. And that doesn't make it a trespass. Well, this Court thought that it may be a sneaky thing to do, but every sneaky thing is not a trespass. Well, this Court thought that it was a technical trespass in Carol and said that made no difference because the purpose of the Fourth Amendment is to protect privacy interests and meaningful interferences with possessory interests, not to cover all technical trespasses. And the case that- So we've narrowed the Fourth Amendment. Well, I think the Court- So the privacy rationale doesn't expand it, but narrows it in some respects. It changes it, Justice Scalia, and I think the case that most clearly illustrates the distinction between trespass and Fourth Amendment protection is Oliver V. United States, the case that reaffirmed the open fields doctrine. In that case, there was absolutely no doubt that the police committed a trespass under local law. They entered, they crossed fences, they ignored big no trespassing signs. And this Court held that the interests that are protected by trespass law are distinct from the interest protected by the Fourth Amendment. Notedly, but the rationale of that case was not unresinable. No, the rationale was that there was no search, Justice Scalia. The rationale of that case is that open fields are not among the things that are protected by the Fourth Amendment. And the Court was very specifically focused on the distinction between trespass law and Fourth Amendment law. You think there would also not be a search. If you put a GPS device on all of our cars, monitor it our movements for a month. You think you're entitled to do that under your theory. The justices of this Court? Yes. Under our theory and under this Court's cases, the justices of this Court when driving on public roadways have no greater expectation. So your answer is yes. You could, to borrow, decide that you put a GPS device on every one of our cars, follow us for a month, no problem under the Constitution. Well, equally, Mr. Chief Justice, if the FBI wanted to, it could put a scheme of surveillance agents around the clock on any individual and follow that individual's movements as they went around on the public streets. And they would thereby gather. That seems to get to me to get to what's really involved here. The issue of whether there's a technical trespass or not is potentially a ground for deciding this particular case

. But it seems to me the heart of the problem that's presented by this case and will be presented by other cases involving new technologists. And the technology is that in the pre-computer, pre-internet age, much of the privacy, I would say most of the privacy that people enjoyed was not the result of legal protections or constitutional protections. It was a result simply of the difficulty of traveling around and gathering up information. But with computers, it's now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets, information that was made available to the public. If this case is decided on the ground that there was a technical trespass, I don't have much doubt that in the near future it will be possible, if it's, I think it's possible now, in many instances, for law enforcement to monitor people's movements on public streets without committing a technical trespass. So how do we deal with this? Do we just say, well, nothing has changed so that all the information that people exposed to the public is fair game. There's no search or seizure when that is obtained because there isn't a reasonable expectation in privacy. But isn't there a real change in this regard? I don't think Justice Alito that there's a particularly dramatic change in this case from what went on in the Carro and the Nots cases. It is possible to envision broader advances in technology that would allow more public information to be amassed and put into computer systems. But I think that the remedy for that, if this court agrees with the principles in Nots and Carro and applies them to this case, the remedy is through legislation just as when the court held that amassing Penn Register data, all of the numbers that you dial on your telephone, the lengths of the times of the calls. The court was confronted in that case with Justice Stewart's view in descent. The third party involved in the telephone in the Penn Register case. And here it's the police. Essentially, I think you answered the question that the government's position would mean that any of us could be monitored whenever we leave our homes. So the only thing secure is the home. That is the end point of your argument, that an electronic device, as long as it's not used inside the house, is okay. Well, we're talking here about monitoring somebody's movements in public. We're not talking about monitoring their conversations, their telephone calls, the interior, their cars, their private letters or packages. So there are enclaves of Fourth Amendment protection that this court has read. So what is the questions that I think people are driving out, at least as I understand them and certainly share the concern, is that if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day, the public movement of every citizen of the United States. And the difference between the monitoring and what happened in the past is memories are fallible, computers aren't. And no one, at least very rarely, sends human beings to follow people 24 hours a day. That occasionally happens. But with the machines, you can. So if you win, you suddenly produce what sounds like 1984 from their brief. If I understand they have an interest in perhaps dramatizing that, but maybe overly, but it still sounds like it. And so what protection is there if any, once we accept your view of the case from this slight futuristic scenario that's just been painted and is done more so in their briefs? K. B

. K. B. K. Of course, that's true and they do have a limit. In this case, they say not to involve a single journey or let's say it involves four journeys. And let's say it involves four journeys and two days. This involves every journey for a month. So they say whatever the line is that's going to protect us, it's short of every journey and a month. So I'm not asking, I'm saying I accept your point there. And what do you say is the limit? K. I first want to address the suggestion that you could draw a line somewhere between a month and a trip and have a workable standard for police officers to use. Police officers used a variety of investigative techniques which in the aggregate produce an enormous amount of information. Pen registers, trash pulls, they look at financial records, they conduct visual surveillance. And under a principle of law that says one trip is okay, but 30 trips is not. There is absolutely no guidance for law enforcement in how there is a- K. Well, there is the same kind of guidance that you have in any case of this court that uses the technique, which is used sometimes. And I think it's used, for example, in the, uh, bribing the judge case, you know, with campaign contributions. You draw an outer limit. You say you can't go beyond that. We know within that there is no standard. We'll leave it for the lower courts to work out and we'll review it over time. That's not necessarily desirable, but that is a method this court has sometimes used. But even if it's wrong, I want to know, are you saying there is no limit or are you suggesting one? I'm suggesting that the court do the same thing that it did in knots. This case does not involve 24-hour surveillance of every citizen of the United States. It involves following one suspected drug dealer, as to whom there was very strong suspicion for a period of time that actually is less than a month because the beeper technology failed. Well, then you're moving away from your argument. Your argument is that it doesn't depend how much suspicion you have. It doesn't depend on how urgent it is

. Your argument is you can do it, period. You don't have to give any reason. It doesn't have to be limited in any way, right? That is correct, Mr. Chief Justice. Now, is it the normal way in this situation that we draw these limits? How intrusive the search can be, how long it can be, is by having a magistrate spell it out and award? When you're talking about the movements of a car on a public roadway, which even Justice Breyer's question seems to concede could be monitored for a day or perhaps four days, there is no Fourth Amendment search. Well, you're talking about the difference between seeing a little tile and seeing a mosaic. The one gives you information, the other doesn't. So does a pen register, so does a garbage poll, so does looking at everybody's credit card statement for a month. All of those things this Court has held are not searches. And the word- Kagan, this case started out with a warrant. There was a warrant, and the limits weren't followed. The warrant said 10 days, do this in 10 days, and the police took 11. It was supposed to do it in DC instead, they did it in Maryland. So the police could have gotten permission to conduct this search, in fact, had received it. Now, I take it that the practice had been, because it's in the electronic surveillance manual, better get a warrant. Was there any problem about when this kind of surveillance is wanted by the government to get a warrant, was they encountering difficulty getting warrants? In this case, there would not have been any difficulty getting a warrant, Justice Ginsburg, and the warrant authorized things beyond just monitoring the car. It authorized entering the car in order to install it, which wasn't necessary here. It also authorized monitoring the car in any location where there was a reasonable expectation of privacy. This case is only about monitoring a car on a public streets. But I think it's very important to keep in mind that the principle use of this kind of surveillance is when the police have not yet acquired probable cause, but have a situation that does call for monitoring, and I'd like to give an example. If the police get an anonymous phone call that a bomb threat is going to be carried out at a mosque by people who work at a small company, the bomb threat on an anonymous call will not provide even reasonable suspicion under this Court's decision in Florida versus JL. But you can hardly expect the FBI to ignore a credible, detailed sounding piece of information like that. Now, if you get an anonymous tip that there's the same bomb in somebody's house, do you get a warrant, or do you just go in? You do, neither, because without probable cause, you cannot enter the house. And why are you asking for a different rule in this situation? Because the police in this situation have the traditional means available to investigate these sorts of tips. They could put teams of agents on all the individuals who are within the pool of suspicion and follow them 24-7. And that would raise- You're now suggesting an answer to Justice Kennedy's question, which is it would be okay to take a computer chip, put it on somebody's overcoat, and follow every citizen everywhere they go indefinitely. So under your theory, and the theory expels in your brief, you could monitor and track every person through their cell phone. Because today, the smart girl, he met signals that police can pick up and use to follow someone anywhere they go

. Your theory is, so long as the person that all that what is being monitored is movement to person of a person, they have no reasonable expectation that their possessions will not be used by you. That's really the bottom line. I think that's a track. And I ask them to invade their sense of integrity in their choices about who they want to see or use their things. I think that that goes considerably farther than our position in this case, because our position is not that the Court should overrule the United States versus Carol and permit monitoring within a private residence. That is off-limits absent a warrant or exigen circumstances plus probable cause. And monitoring an individual through their clothing poses an extremely high likelihood that they will enter a place where they have a reasonable expectation of privacy. Yes, but a car that's parked in a garage does not have a reasonable expectation of privacy as to its location. Anyone can observe. No, that this person. Well, now that it's home and their overcoat gets hung on a hanger. Once the effect is in the house under Carol, there is an expectation of privacy. That it cannot be breached without a warrant. And we're not asking the Court to overrule. Tell me what the difference between this and a general warrant is. I mean, a general warrant? A warrant? It motivated the Fourth Amendment historically was the disapproval, the outrage, that I found the father's experience with general warrants that permitted a police indiscriminately to investigate just on the basis of suspicion, not probable cause. And to invade every possession that the individual had in search of a crime. How is this different? This warrant of suspicion. There's no probable cause. There's not even necessarily reasonable suspicion in the system. A warrant authorizes a search. This authorizes the ability to track somebody's movements in a car on a public roadway. A subject as to which this Court said in knots that no individual has a reasonable expectation of privacy, because when they go out in their car, their car is traveling on public roads. Anyone can look. The police have no obligation to avert their eyes from anything that any member of the public. I give you that that it's in public. Does the reasonable expectation of privacy trump that fact? In other words, if we ask people, do you think it violates your right to privacy to have this kind of information acquired? And everybody says yes. Is it a response that no that takes place in public, or is it simply the reasonable expectation of privacy, regardless of the fact that it takes place in public? Well, something that takes place in public isn't inherently off limits to a reasonable expectation of privacy

. That's essentially the holding of cats. You go into a phone booth. You're in public making your calls within the phone booth is subject to a reasonable expectation of privacy. But this Court with full awareness of that holding in knots and in carol recognize that surveillance of a vehicle traveling on the public roadways doesn't fit that position. So, you can't see, you know, can't you, that 30 years ago, if you asked people, does it violate your privacy to be followed by a beaper in the police following you? You might get one answer. Well, today, if you asked people, does it violate your right to privacy to know that the police can have a record of every movement you made in the past month, they might see that differently. They probably would also feel differently about being followed 24-7 by a team of FBI agents who gain far more information than a GPS device produces. GPS only gives you the approximate location of the car as it drives on the roads. And the speed as well. The, as, approximate speed, the location traveled, this, that, that is what the GPS provides. It doesn't show you where the car stopped. It doesn't show you who was driving the car. It doesn't show you where it was. It's easy way to pick someone up with speeding when you suspect something far worse but have no, no probable cause. Well, this Court held in RAN versus United States that when the police have probable cause to stop someone for a traffic violation, they can do that. There are protections. That's when the police came upon the violator. But this is, it's all in the computer. The police can say, we want to find out more about X. So, consult the database, see if there's an indication that he was ever speeding in the last 28 days. Justice Ginsburg, it's not very hard for police to follow somebody and find a traffic violation if they want to do that. But to answer, in part, Justice Breyer's earlier concern about limiting principles, this Court recognized in the RAN decision that although the Fourth Amendment is not a restriction on discriminatory or arbitrary or oppressive stops that are based on in video's characteristics, the equal protection clause is. The First Amendment also stands as a protection if this Court believes that there's an excessive chill created by an actual law or universal practice of monitoring people through GPS. There are other constitutional principles that are applicable. The Fourth Amendment protects us against unreasonable searches and seizures. And I will try to explain to someone. Here's the Fourth Amendment. The Fourth Amendment says, but it has been interpreted to mean that if I'm on a public bus and the police want to feel my luggage, that's a violation

. And yet this kind of monitoring, installing the GPS and monitoring the person's movements whenever they're outside the house in the car is not. I mean, it's just something about it that doesn't just doesn't pass. I'm quite sure Justice Ginsburg that if you ask citizens whether the police could freely pick up their trash for a month and paw through it looking for evidence of a crime or keep a record of every telephone call that they made for the duration and the number that it went through or conduct intense visual surveillance of them, that citizens would probably also find that to be in the word that respondents choose to do. But they won't. And probably couldn't physically start with the other end, start what would a democratic society look like if a large number of people did think that the government was tracking their every movement over long periods of time. And once you reject that, you have to have a reason under the Fourth Amendment and a principle. And what I'm looking for is the reason and the principle that would reject that, but wouldn't also reject 24 hours a day for 28 days. I think that's what I'm listening very hard to find. All right. Justice Breyer, two things on that. First of all, I think the line drawing problems that the Court would create for itself would be intolerable and better that the Court should address the so-called 1984 scenarios if they come to pass rather than using this case as a vehicle for doing so. Second, if no more, the case is not that vehicle. If any, the Court. If the KPS technology today is limited only by the cost of the instrument, which, frankly, right now is so small that it wouldn't take that much of a budget, local budget to place a GPS on every car in the nation. Oh, I think that almost every car has it now. Well, I think it would be virtually impossible to use the kinds of tracking devices that were used in this case on everyone because we have any legislatures out there that can stop this stuff. I think I need to. Justice Scalia, the legislature is a safeguard. And if the Court believes that there needs to be a fourth amendment safeguard as well, we have urged, as a fallback position, that the Court adopted a reasonable suspicion standard, which would allow the police to conduct surveillance of individuals in their movements on public roadways, which they can do visually in any event, and would allow the police to investigate leads and tips that arise under circumstances where there is not probable cause. Who would be under your test the judge of the reasonable suspicion? As in most reasonable suspicion cases, it's the police at the front end, and it's the courts at the back end, if there are motions to suppress evidence. But fundamentally, just as in the Penn Register example and in the financial records example, if this Court concludes consistent with its earlier cases that this is not a search, yet all Americans find it to be an omen of 1984, Congress would stand ready to provide appropriate protection. If I may say it the rest of my time for a minute. Thank you. Your questions have eaten into your rebuttal time, so we'll give you the full time. Mr. Lecker? Thank you. Mr. Chief, Dressus and Mayor, please the Court

. I want to talk about the one issue that the United States didn't talk about, which is whether this is a seizure. In this case can be resolved in a very narrow basis, a very narrow basis. What are the consequences when the police without a warrant install a GPS secretly on the car of any citizen of the United States and they want to use the evidence gained that way in a criminal trial? Our position is that's a seizure. What is the size of this device? I'm sorry, what is the size of this device? The record doesn't show in this case, but we know we learned last week Justice Toledo from the NACDL that there is now a GPS on the market that weighs two ounces and is the size of the credit card. Think how easy it would be for any law enforcement agent, a V880,000, a V&I to state to stick fund of votes on anybody's feet. And what if it was put on the license plate? Would that be a technical trespass? Is that the property of the driver? Well, a license plate, as I understand it, is a property of the state and driving as a privilege, but it's not a technical trespass in this particular case. Mr. Jones has that right. I don't own my license plate. I didn't know that. How do you know that? How do you know that? Well, we wait for my license plate. We don't need to get into it, but live for your dying. We felt another life. What I'm saying, Justice Kennedy and Justice Scalia is this, that the law enforcement is the issue in so far as the seizure is concerned, is it meaningful? Everybody agrees here that there is, that Antron Jones had the right to control the use of his vehicle. The question is, was the interference a meaningful deprivation of this possessive interest? I didn't hear an answer to Justice Alito's question. What is your position on the placement of the GPS device on the state-owned license plate? They can't do it. They can't do it, Your Honor. It's a seizure. I'm sorry. But if the- My understanding is correct that it's the State's license plate they require you to have. The address pass theory it would seem falls apart with respect to that particular scenario. Well, first of all, Justice Chief Justice Roberts, you would probably see the GPS. And in that case- It's a size of a credit card. You slip it behind the license plate. In that particular case, what you have done is you have the installation of the GPS is the seizure. What makes it meaningful is the use of that cheap. This is ridiculous. Look, you give the state permission to put the license plate, to have your car carry the state's license plate

. You do not give anybody's permission to have your car carry a tracking device. And whether it's put directly on the car or directly on something that the car is carrying doesn't seem to be to make any difference. I thought it made a difference under your theory, which focused on the question of trespass, because it was attached to an effect owned by somebody else. This is an effect not owned by the individual. So the trespass theory anyway doesn't seem ridiculous to me. But as an effect, Your Honor, the fourth member protects attacks, it protects people. If you put it on somebody's briefcase, if you put it on somebody's car, you have affected their possessory interest. Then the question comes. I guess I'm not sure I quite understand the argument, because a trespass is accomplished no matter what you put on somebody's car or somebody's overcoat or what have you. You could put a non-working device in somebody's car, and it would still be a trespass. But surely the same constitutional problem is not raised. So how do you get from the trespass to the constitutional problem? As I thank you, Justice Hagen, as I said moments ago, what makes it meaningful, what makes it a meaningful deprivation of a possessory interest is once the GPS gets activated. We look at reality, we follow it. It doesn't make it a seizure, it doesn't make it a seizure, it makes it a search. I mean, you can say that there's a trespass for the purpose of obtaining information, which makes it a search. But I don't see how it's a seizure. A seizure, you have to bring something within your control. You have to stop the person or stop the vehicle. What has been seized when you slap a tracking device on a car? What has been seized is that is created by the GPS. Antoine Jones had the right to control the use of his vehicle. And what the government did was surreptitiously deprived him of the use of that case involving seizure of data floating in the air as opposed to papers. The closest case I could come to your honor would be Silverman, where the court called a Fourth Amendment violation, where the swipe might just touch the ventilator unit. Violation, unless in addition to a search, it is an unreasonable search. And since you already have, and the same is true of seizure, isn't it? So you already have, everybody agrees, it's at least a search. So what do you care? And there's a case called CARO, which says whether it's a trespass doesn't really matter. The question is the reasonableness of it. And that's what I think is, I mean, you can argue trespasses as much as you want, but I'll still have in mind, is it reasonable? That's right. And I think that's the question we've been debating. And I would like to know from you that what they're saying is that the parade of horribles we can worry about when it comes up, the police have many, many people that they suspect of all kinds of things ranging from kidnappings, of lost children to terrorism, to all kinds of crimes. There will be goes far as reasonable suspicion in a pinch. And they say, at least with that, you will avoid the 1984 scenario. And you will, in fact, allow the police to do their work with doing no more than subjecting the person to really good knowledge of where he's going on the open highway. I've they probably put it better than I did, but I'd appreciate your views on that. Regional suspicion, Justice Breyer, is something that the Court has adopted for limited intrusions, and I'll refer you to the United States versus place. Every 10 seconds of a day, for 28 days, is by no person's lights, a limited intrusion. That said, what happened here, it society does not view as reasonable for concept that the United States government has the right to take a device that enables them to engage in pervasive, limitless cost-free, cost-free surveillance that completely replaces the humidity-free-free-free-free-free-free-free. How do you know why does it have to be cost-free? It's a supposed-to-police department says we've got two things. We can put 30 deputies on this route and watch this person, or we can have a device with a warrant. What what what what difference does it mean? What happens is the police have the capacity with GPS to engage in grave abuse, grave abuse of individual and group liberties, Your Honor. What might suppose what they got is nothing more than what they would have had if they had 30 deputies staked out along the route. That's all they can get the same from 30 deputies. A constitution of yes if they use the GPS Your Honor any placement of a GPS on anybody's car. No, no, no, no. We're assuming that there's no initial trespass which is a problem in this case. You're saying it's it's the quantity and and of the information seized and the time over which it's seized. Yeah and that's that that's the proposition we're testing and it seems to me that what you're saying is that the police have to use the most inefficient methods. No, Your Honor. I'm not asking fully aware of the 1984 Ministry of Love Ministry of of peace problem but this your argument seems to me has has no principle distinction from the case that I put. I think I can help you about we're not asking to make the police less efficient than they were before GPS came in or effect. We're simply saying that the use of GPS has grave potential grave threats of abuse to privacy that people have an expectation justice Kennedy that their neighbor is not going to use their car to track them. People have an extra under-wake us. I refer to court to footnote 12 in the rake case Antoine Jones had control of that car control of that of a vehicle meant that he had a reasonable expectation that society is prepared to view as objectively reasonable but he wouldn't be protected against a surveillance camera that could get information and is this really different in kind from the surveillance camera yes first of all you have a physical invasion that's bond versus United States you have an invasion of his possessory interest on placement on the car a physical invasion for possessory interest Justice Ginsburg is more significant is always been viewed by this court as more invasive than mere video mere visual surveillance and even with a camera it depends on the type of the video camera we're not saying that the police are prohibited from having individual video cameras or several video cameras to surveill people what we're saying here is this device, this device that enables limitless pervasive and dangerous. But what is the difference really I'm told maybe this is wrong but I'm told that if somebody goes to London almost every place that person goes there's a camera taking pictures so that the police can put together snapshots of where everybody is all the time so why is this different from that it's pretty scary I wouldn't want to live in London another circumstance well it must be unconstitutional if it's scary I mean what is it the scary provision of what what article and in back those cameras in London actually enabled them if you watched them I got the impression to track the bomber who was going to pull up the airport in Glasgow and to stop him before he did so there are many people who will say that that kind of surveillance is worthwhile and there are others like you who will say no that's a bad thing but that isn't the issue exactly in front of us that's correct your honor what we have here is a physical and what Justice Kagan wanted to know is why not because you have a physical invasion of property oh my goodness here can I read that sorry I just had that expression because I'm reading the existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated however for an actual trespass is neither necessary nor sufficient to establish a constitutional violation that's Karram so you can talk if you'd like it's your hour but I would really be very interested in hearing you on the assumption that the real issue here is whether this is reasonable it's not your honor this is not a care okay first of all in care of the installation was essentially consented to you took the package came in by virtue of somebody who was working for the government so the installation was not unlike this case where it was suspicious and directly engaged in by a government agent you're mixing you're mixing two things you're the one that I thought your position was that the initial trespass is not important that's the narrow way to decide the case you don't want us to do that so now we ask you about Karram Karram you say oh well there was a trespass so that's not a that's not a responsive answer well the technology is your service justice committee is dramatically different with GPS but it's going to be dramatically different in the next step there are now satellites that look down and can hone in on your home on a block in an neighborhood I don't see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place well so if give us a theory is that okay for the police to access those cameras and look at you moving from place to place and if that's okay then why is this not okay what is your theory of your case I theory just on my own with respect to video camera if they're targeting an individual this presents a great question it's the question but need not be resolved given this case but if the court wanted to address that question once the police target somebody they want to engage an individualized targeting through use of a pervasive network of cameras and GPS is like a million cameras that's the the New York Court of Appeals pointed that out and I think there's about 28 satellites up there but it's 28 cameras but the equivalent of a camera tracking you every street corner you're on everywhere once you have individualized suspicion like that if the court wanted to deal with it I believe you would have to have a war. It's still like all of this discussion you're going into it but the questioning leads you into it. It seems to me leaps over the difficult part of your case the issue before us is not in the abstract whether this police conduct is unreasonable the unreasonable is requirement or the unreasonable is prohibition does not take effect unless there has been a search and our cases have said that there's no search when when you are in public and where everything that you do is open to the view of people that's the hard question in the case not whether this is unreasonable that's not what the Fourth Amendment says the police can't do anything that's unreasonable they can do a lot of stuff that's unreasonable without violating the Fourth Amendment and the protection against that is the legislature but you have to establish if you're going to go with cats that there has been an invasion of privacy when all that all that this is showing is where the car is going on the public streets where the police could have had around the clock surveillance on this individual for a whole month or for two months or for three months and that would not have violated anything would it? Why? Because there's no invasion of privacy. So why is this an invasion of privacy? Because it is a very, it is a complete robotic substitute

. And I would like to know from you that what they're saying is that the parade of horribles we can worry about when it comes up, the police have many, many people that they suspect of all kinds of things ranging from kidnappings, of lost children to terrorism, to all kinds of crimes. There will be goes far as reasonable suspicion in a pinch. And they say, at least with that, you will avoid the 1984 scenario. And you will, in fact, allow the police to do their work with doing no more than subjecting the person to really good knowledge of where he's going on the open highway. I've they probably put it better than I did, but I'd appreciate your views on that. Regional suspicion, Justice Breyer, is something that the Court has adopted for limited intrusions, and I'll refer you to the United States versus place. Every 10 seconds of a day, for 28 days, is by no person's lights, a limited intrusion. That said, what happened here, it society does not view as reasonable for concept that the United States government has the right to take a device that enables them to engage in pervasive, limitless cost-free, cost-free surveillance that completely replaces the humidity-free-free-free-free-free-free-free. How do you know why does it have to be cost-free? It's a supposed-to-police department says we've got two things. We can put 30 deputies on this route and watch this person, or we can have a device with a warrant. What what what what difference does it mean? What happens is the police have the capacity with GPS to engage in grave abuse, grave abuse of individual and group liberties, Your Honor. What might suppose what they got is nothing more than what they would have had if they had 30 deputies staked out along the route. That's all they can get the same from 30 deputies. A constitution of yes if they use the GPS Your Honor any placement of a GPS on anybody's car. No, no, no, no. We're assuming that there's no initial trespass which is a problem in this case. You're saying it's it's the quantity and and of the information seized and the time over which it's seized. Yeah and that's that that's the proposition we're testing and it seems to me that what you're saying is that the police have to use the most inefficient methods. No, Your Honor. I'm not asking fully aware of the 1984 Ministry of Love Ministry of of peace problem but this your argument seems to me has has no principle distinction from the case that I put. I think I can help you about we're not asking to make the police less efficient than they were before GPS came in or effect. We're simply saying that the use of GPS has grave potential grave threats of abuse to privacy that people have an expectation justice Kennedy that their neighbor is not going to use their car to track them. People have an extra under-wake us. I refer to court to footnote 12 in the rake case Antoine Jones had control of that car control of that of a vehicle meant that he had a reasonable expectation that society is prepared to view as objectively reasonable but he wouldn't be protected against a surveillance camera that could get information and is this really different in kind from the surveillance camera yes first of all you have a physical invasion that's bond versus United States you have an invasion of his possessory interest on placement on the car a physical invasion for possessory interest Justice Ginsburg is more significant is always been viewed by this court as more invasive than mere video mere visual surveillance and even with a camera it depends on the type of the video camera we're not saying that the police are prohibited from having individual video cameras or several video cameras to surveill people what we're saying here is this device, this device that enables limitless pervasive and dangerous. But what is the difference really I'm told maybe this is wrong but I'm told that if somebody goes to London almost every place that person goes there's a camera taking pictures so that the police can put together snapshots of where everybody is all the time so why is this different from that it's pretty scary I wouldn't want to live in London another circumstance well it must be unconstitutional if it's scary I mean what is it the scary provision of what what article and in back those cameras in London actually enabled them if you watched them I got the impression to track the bomber who was going to pull up the airport in Glasgow and to stop him before he did so there are many people who will say that that kind of surveillance is worthwhile and there are others like you who will say no that's a bad thing but that isn't the issue exactly in front of us that's correct your honor what we have here is a physical and what Justice Kagan wanted to know is why not because you have a physical invasion of property oh my goodness here can I read that sorry I just had that expression because I'm reading the existence of a physical trespass is only marginally relevant to the question of whether the Fourth Amendment has been violated however for an actual trespass is neither necessary nor sufficient to establish a constitutional violation that's Karram so you can talk if you'd like it's your hour but I would really be very interested in hearing you on the assumption that the real issue here is whether this is reasonable it's not your honor this is not a care okay first of all in care of the installation was essentially consented to you took the package came in by virtue of somebody who was working for the government so the installation was not unlike this case where it was suspicious and directly engaged in by a government agent you're mixing you're mixing two things you're the one that I thought your position was that the initial trespass is not important that's the narrow way to decide the case you don't want us to do that so now we ask you about Karram Karram you say oh well there was a trespass so that's not a that's not a responsive answer well the technology is your service justice committee is dramatically different with GPS but it's going to be dramatically different in the next step there are now satellites that look down and can hone in on your home on a block in an neighborhood I don't see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place well so if give us a theory is that okay for the police to access those cameras and look at you moving from place to place and if that's okay then why is this not okay what is your theory of your case I theory just on my own with respect to video camera if they're targeting an individual this presents a great question it's the question but need not be resolved given this case but if the court wanted to address that question once the police target somebody they want to engage an individualized targeting through use of a pervasive network of cameras and GPS is like a million cameras that's the the New York Court of Appeals pointed that out and I think there's about 28 satellites up there but it's 28 cameras but the equivalent of a camera tracking you every street corner you're on everywhere once you have individualized suspicion like that if the court wanted to deal with it I believe you would have to have a war. It's still like all of this discussion you're going into it but the questioning leads you into it. It seems to me leaps over the difficult part of your case the issue before us is not in the abstract whether this police conduct is unreasonable the unreasonable is requirement or the unreasonable is prohibition does not take effect unless there has been a search and our cases have said that there's no search when when you are in public and where everything that you do is open to the view of people that's the hard question in the case not whether this is unreasonable that's not what the Fourth Amendment says the police can't do anything that's unreasonable they can do a lot of stuff that's unreasonable without violating the Fourth Amendment and the protection against that is the legislature but you have to establish if you're going to go with cats that there has been an invasion of privacy when all that all that this is showing is where the car is going on the public streets where the police could have had around the clock surveillance on this individual for a whole month or for two months or for three months and that would not have violated anything would it? Why? Because there's no invasion of privacy. So why is this an invasion of privacy? Because it is a very, it is a complete robotic substitute. It's not a tale and interestingly enough you're on a government only cited in its brief one instance of 24-hour surveillance for all of two days what you have here Justice Scalia is I'm going to refer to your dissent. 100 times zero equals zero if there is no invasion of privacy for one day there's no invasion of privacy for a hundred days and it may be unreasonable police conduct and we can handle that with laws but if there's no invasion of privacy no matter how many days you do it there's no invasion of privacy. Justice Scalia what I'm going to refer you're dissent along with Justice Breyer and Bond versus United States a GPS in your car is like or anybody's car is like without it warrant is like having an un it makes you unable to get rid of an uninvited stranger. That's what it is and what was the tale so is it tale but a tale surveil surveil you for a month the question we have to answer in this case Justice Scalia exists if they can if they want to tell they want to commit to resources that's fine but what a GPS does it involves it allows the government to engage in unlimited surveillance through a machine, through a machine robotically nobody's even involved monitoring the record in this case showed that many times the police officers just let the machine go on. Where would you draw the line suppose that the GPS was used only to track somebody's movements for one day or for 12 hours or for three hours. Would that be all right? Our position Justice Salito is no circumstances should a GPS be allowed to be put on somebody's car but we decide to decide the the trespass question. I'm not addressing it fuel there's a trespass our view is the use of a GPS as a search in and of itself should be should be viewed as unreasonable but if the court were uncomfortable with that if court had concerns about we suggested in our brief some possibilities one day one trip one person per day or a trip or perhaps when you use it exactly as a beeper when you follow it when you actually physically follow it. That sounds like a legislative line but what is the difference between following somebody for 12 hours let's say and monitoring their movements on the GPS for 12 hours. You would say that the latter your first argument is there's a problem with the latter but not with the former but what would the reason for that be? Because it's an unreasonable invasion of privacy your honor. There's no more what what what is the difference in terms of one's privacy whether you're followed by a police officer for 12 hours and you don't see the officer or whether you're monitored by GPS for 12 hours. Because what you have here is society does not expect that the police the human element will be taken out of will be taken out of the surveillance. You know I don't know what society expects and I think it's changing technology is changing people's expectations of privacy. Suppose we look forward 10 years and maybe 10 years from now 90% of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day 365 days a year through the use of their cell phones. Then what would the expectation of privacy be then? Well the use of a cell phone there are two ways of looking at it is justice Kennedy observed in corn cell phones are becoming so ubiquitous and maybe privacy interest. Our view is that currently the use of a cell phone that's a voluntary act. People nowadays understand that they're ways to monitor by way of a cell phone. But I started my oral argument with this basic precept justice. You know this case does not require us to decide those issues of emerging technology. It's a simple case in the court. Should the police be allowed, surreptitiously, to put these machines on people's cars and even if call of a seizure, call of a search, call of a search in the words of cats, or call of a fourth amendment. Well that maybe that's a good way to decide the case. But I just wonder would Mr. Jones or anybody else be really upset if they found that the police had sneaked up to their car and put an inert device the size of a credit card on the underside of the car. What would they say about that other than the fact that the police are wasting money doing this? If we were nothing more than a note, or even a bumper sticker like you got yourself on the border, probably enough. You don't need to see it. It's just a little wafer. They put it under the car. It does nothing

. It's not a tale and interestingly enough you're on a government only cited in its brief one instance of 24-hour surveillance for all of two days what you have here Justice Scalia is I'm going to refer to your dissent. 100 times zero equals zero if there is no invasion of privacy for one day there's no invasion of privacy for a hundred days and it may be unreasonable police conduct and we can handle that with laws but if there's no invasion of privacy no matter how many days you do it there's no invasion of privacy. Justice Scalia what I'm going to refer you're dissent along with Justice Breyer and Bond versus United States a GPS in your car is like or anybody's car is like without it warrant is like having an un it makes you unable to get rid of an uninvited stranger. That's what it is and what was the tale so is it tale but a tale surveil surveil you for a month the question we have to answer in this case Justice Scalia exists if they can if they want to tell they want to commit to resources that's fine but what a GPS does it involves it allows the government to engage in unlimited surveillance through a machine, through a machine robotically nobody's even involved monitoring the record in this case showed that many times the police officers just let the machine go on. Where would you draw the line suppose that the GPS was used only to track somebody's movements for one day or for 12 hours or for three hours. Would that be all right? Our position Justice Salito is no circumstances should a GPS be allowed to be put on somebody's car but we decide to decide the the trespass question. I'm not addressing it fuel there's a trespass our view is the use of a GPS as a search in and of itself should be should be viewed as unreasonable but if the court were uncomfortable with that if court had concerns about we suggested in our brief some possibilities one day one trip one person per day or a trip or perhaps when you use it exactly as a beeper when you follow it when you actually physically follow it. That sounds like a legislative line but what is the difference between following somebody for 12 hours let's say and monitoring their movements on the GPS for 12 hours. You would say that the latter your first argument is there's a problem with the latter but not with the former but what would the reason for that be? Because it's an unreasonable invasion of privacy your honor. There's no more what what what is the difference in terms of one's privacy whether you're followed by a police officer for 12 hours and you don't see the officer or whether you're monitored by GPS for 12 hours. Because what you have here is society does not expect that the police the human element will be taken out of will be taken out of the surveillance. You know I don't know what society expects and I think it's changing technology is changing people's expectations of privacy. Suppose we look forward 10 years and maybe 10 years from now 90% of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day 365 days a year through the use of their cell phones. Then what would the expectation of privacy be then? Well the use of a cell phone there are two ways of looking at it is justice Kennedy observed in corn cell phones are becoming so ubiquitous and maybe privacy interest. Our view is that currently the use of a cell phone that's a voluntary act. People nowadays understand that they're ways to monitor by way of a cell phone. But I started my oral argument with this basic precept justice. You know this case does not require us to decide those issues of emerging technology. It's a simple case in the court. Should the police be allowed, surreptitiously, to put these machines on people's cars and even if call of a seizure, call of a search, call of a search in the words of cats, or call of a fourth amendment. Well that maybe that's a good way to decide the case. But I just wonder would Mr. Jones or anybody else be really upset if they found that the police had sneaked up to their car and put an inert device the size of a credit card on the underside of the car. What would they say about that other than the fact that the police are wasting money doing this? If we were nothing more than a note, or even a bumper sticker like you got yourself on the border, probably enough. You don't need to see it. It's just a little wafer. They put it under the car. It does nothing. A little wafer of its got an enormous capacity. Look at that. But this one does nothing. And you would go to it, you would sue the, you would bring a trespass action. You have to know what you want to do. If it did nothing first, it wouldn't be a poor thing. So what you're concerned about is not this little thing that's put on your car. It's not this invasion of your property interest. It's the monitoring that takes place. The monitoring makes it meaningful, putting it on, enables them to. Kagan, ask Justice Alito's question in a different way. Suppose that the police could do this without ever committing a trespass. Suppose that in the future all cars are going to have GPS tracking systems and the police could essentially hack into such a system without committing a trespass. Would the constitutional issue be face to be any different? As I assume, that's because of the manufacturers doing it, because Congress has legislated a Justice Kagan. Under either circumstance, people would know. They would know that the privacy rights have been taken away. Whether that would be possible to go through Congress, I seriously doubt. But people would know. In this particular case, Antoine Jones had no idea whatsoever. That his possessory interest in that property was about to be deprived by the government in a meaningful way to allow them to get information. They couldn't, otherwise, have gotten. Justice Alito, what happens here? GPS produces unique data. When you and I drive down the street, we don't emit GPS data. What makes GPS data meaningful is the use and placement of the GPS device. But was in this case, in this case, unconcented to by Antoine Jones, unknowingly. And the government knew that. That's why they weren't viewed it surreficiously, because they couldn't get it any other way. Lots of communities have, including the Washington cameras at intersections on stoplights

. A little wafer of its got an enormous capacity. Look at that. But this one does nothing. And you would go to it, you would sue the, you would bring a trespass action. You have to know what you want to do. If it did nothing first, it wouldn't be a poor thing. So what you're concerned about is not this little thing that's put on your car. It's not this invasion of your property interest. It's the monitoring that takes place. The monitoring makes it meaningful, putting it on, enables them to. Kagan, ask Justice Alito's question in a different way. Suppose that the police could do this without ever committing a trespass. Suppose that in the future all cars are going to have GPS tracking systems and the police could essentially hack into such a system without committing a trespass. Would the constitutional issue be face to be any different? As I assume, that's because of the manufacturers doing it, because Congress has legislated a Justice Kagan. Under either circumstance, people would know. They would know that the privacy rights have been taken away. Whether that would be possible to go through Congress, I seriously doubt. But people would know. In this particular case, Antoine Jones had no idea whatsoever. That his possessory interest in that property was about to be deprived by the government in a meaningful way to allow them to get information. They couldn't, otherwise, have gotten. Justice Alito, what happens here? GPS produces unique data. When you and I drive down the street, we don't emit GPS data. What makes GPS data meaningful is the use and placement of the GPS device. But was in this case, in this case, unconcented to by Antoine Jones, unknowingly. And the government knew that. That's why they weren't viewed it surreficiously, because they couldn't get it any other way. Lots of communities have, including the Washington cameras at intersections on stoplights. Suppose the police suspected someone of criminal activity, and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements in his room for five days. Would that be lawful? I think that would be a law of barriere honor. You think it would be? I think that would be permissible, Your Honor. First of all, you don't have a physical intrusion, unlike this case. People nowadays... You have a targeted invasion. It's over a period of time. It's over a wide space. And it seems to me that you have to answer my question. Yes, to be consistent with what you've said earlier. No, Your Honor. As I said earlier, you can have an occasional video camera out there. People understand nowadays that there may be video cameras out in public space. But we don't have any society that is not expected to view it as reasonable to have the equivalent of a million video cameras following you everywhere you go. A few video cameras, people know they've cropped up and they've been accepted. But this is the horse of an entirely different color. This is a small device that enables the government to get information of a vast amount of work. What an unworkable rule with no tether to no principle. What an unworkable rule tether to no principle. A thousand video cameras may or may not be okay depending on how large the city is. No, Justice Odenmar. I think the workable rule and the simplest rule that should be adopted is this. I think the court should say to the law enforcement agencies. You came here looking for a rule. We're going to give you a rule. If you want to use GPS devices, get a warrant, apps and exigen circumstances or another recognized exception to the fourth amendment

. Suppose the police suspected someone of criminal activity, and they had a computer capacity to take pictures of all the intersections that he drove through at different times of day, and they checked his movements in his room for five days. Would that be lawful? I think that would be a law of barriere honor. You think it would be? I think that would be permissible, Your Honor. First of all, you don't have a physical intrusion, unlike this case. People nowadays... You have a targeted invasion. It's over a period of time. It's over a wide space. And it seems to me that you have to answer my question. Yes, to be consistent with what you've said earlier. No, Your Honor. As I said earlier, you can have an occasional video camera out there. People understand nowadays that there may be video cameras out in public space. But we don't have any society that is not expected to view it as reasonable to have the equivalent of a million video cameras following you everywhere you go. A few video cameras, people know they've cropped up and they've been accepted. But this is the horse of an entirely different color. This is a small device that enables the government to get information of a vast amount of work. What an unworkable rule with no tether to no principle. What an unworkable rule tether to no principle. A thousand video cameras may or may not be okay depending on how large the city is. No, Justice Odenmar. I think the workable rule and the simplest rule that should be adopted is this. I think the court should say to the law enforcement agencies. You came here looking for a rule. We're going to give you a rule. If you want to use GPS devices, get a warrant, apps and exigen circumstances or another recognized exception to the fourth amendment. Because of their capacity for collect data if you couldn't realistically get, because of their vannisely low cost, because of their pervasive nature, that you should get a warrant. Anytime you must get a warrant, anytime you're going to attach a GPS to a citizens effect or to a citizen effect. Well, that gets back to Justice Scalia's question, which is you've got to determine that there's been a search first before you impose a warrant requirement. And it seems to me that your warrant requirement applies only with respect to searches, right? And seizures. And seizures. So while it might seem like a good idea to impose the requirement on this particular technological device, you still have to establish that it's a search. But if you know, if you, the police agents know, this is the deliberative process. These devices aren't used for just quick one-off surveillance. They are used to track people over time, as within this case, every 10 seconds of a day, 28 days. If you know you're going to do that and you know Justice Roberts, it's a device. This device has an amazingly invasive power and capacity. If you know you're going to do that and you're a law enforcement agent, then you do it. They did a really good job. Now, we've got to wish you a, we pushed your friend to the limits of his theory. Your theory, I take it, would apply if you're going to do it for three minutes, right? Where's the car you push a button, it's three minutes, you say that's still a Fourth Amendment violation. So see, well, then don't talk to me about how long they're going to be doing it or all the information. We have to test the validity of your theory on the proposition that it violates the Fourth Amendment to do this for three minutes. I think it does, Your Honor, because the society does not expect. Society views this as objectively reasonable. I even said that several times. How do we tell? I mean, I don't know what society expects. I suppose if you ask people, do you think it's a violation of privacy for the police to do this for no reason for a month? Maybe they'd come out one way. If you ask the people, do you think the police have to have probable cause before they monitor for five minutes, the movements of somebody they think is going to set off a huge bomb? Maybe you get a different answer. You look to common law, you look to well-established case law, you look to statutes and several jurisdictions, I think to a seven rate that have said this sort of path should be prohibitive. Excellent. Yes. Of course, a legislature can take care of this, whether or not there is an invasion of privacy. And they can pick five days out of the air

. Because of their capacity for collect data if you couldn't realistically get, because of their vannisely low cost, because of their pervasive nature, that you should get a warrant. Anytime you must get a warrant, anytime you're going to attach a GPS to a citizens effect or to a citizen effect. Well, that gets back to Justice Scalia's question, which is you've got to determine that there's been a search first before you impose a warrant requirement. And it seems to me that your warrant requirement applies only with respect to searches, right? And seizures. And seizures. So while it might seem like a good idea to impose the requirement on this particular technological device, you still have to establish that it's a search. But if you know, if you, the police agents know, this is the deliberative process. These devices aren't used for just quick one-off surveillance. They are used to track people over time, as within this case, every 10 seconds of a day, 28 days. If you know you're going to do that and you know Justice Roberts, it's a device. This device has an amazingly invasive power and capacity. If you know you're going to do that and you're a law enforcement agent, then you do it. They did a really good job. Now, we've got to wish you a, we pushed your friend to the limits of his theory. Your theory, I take it, would apply if you're going to do it for three minutes, right? Where's the car you push a button, it's three minutes, you say that's still a Fourth Amendment violation. So see, well, then don't talk to me about how long they're going to be doing it or all the information. We have to test the validity of your theory on the proposition that it violates the Fourth Amendment to do this for three minutes. I think it does, Your Honor, because the society does not expect. Society views this as objectively reasonable. I even said that several times. How do we tell? I mean, I don't know what society expects. I suppose if you ask people, do you think it's a violation of privacy for the police to do this for no reason for a month? Maybe they'd come out one way. If you ask the people, do you think the police have to have probable cause before they monitor for five minutes, the movements of somebody they think is going to set off a huge bomb? Maybe you get a different answer. You look to common law, you look to well-established case law, you look to statutes and several jurisdictions, I think to a seven rate that have said this sort of path should be prohibitive. Excellent. Yes. Of course, a legislature can take care of this, whether or not there is an invasion of privacy. And they can pick five days out of the air. You can't do it for any more than five days. Or you can't do it to more than 50 people at a time. They can take care of all of that stuff. We can't do that in a decision under the Fourth Amendment. I, is this precisely the kind of a problem that you should rely upon legislatures to take care of? That's the same problem at the United States advance before this Court, the United States versus District Court. Give it to Congress. And with this Court there did, it held a Fourth Amendment violation so far as domestic security's concerned and gave Congress suggestions. In this particular case, I could probably give you 535 reasons why not to go to Congress, but let me suggest something, Justice Scalia, what happened was the United States has adopted a shifting position. They came to this Court and they said, we want a workable rule. Give us a workable rule, if you're either overruled with DC Circuit, which you should not do, or give us a workable rule. Now they've said in their brief, oh, let's take it to the legislature. They can't have it both. You take it to Congress the other way. I mean, can you say that a general search of this kind is not constitutional onto the Fourth Amendment, but should Congress pick out a subset thereof, say the terrorism or where there is reasonable cause or like the FISA court or a special courts to issue special kinds of warrants, that that's a different question which we could decide at a later time. That's a negative way of going. I mean, that way favors you in the result, but I've been looking for if there is a way of going to Congress to create the situations where they can do it rather than the situations where they can't. Justice Breyer, that was exactly what happened when the 400-tellings surveillance courts were created. You hit it right on the nail. Obviously, Court has to do with decide the narrow question before it, which I've articulated several times. I don't see why it's any of Congress's business if it's a purely intrast state operation. Congress can control police practices that don't violate the Fourth Amendment throughout the country. I mean, maybe interstate, interstate beepers and interstate tracking devices, yes, but so long as you track within the state, isn't that okay? No, Your Honor. First of all, I'll let me refer to Justice Frank Furtard's comments a long time ago in Watts versus Indiana. Justice is an ignorant of law of what they know to be true men and women, but other legislatures would follow Congress. But what we have here, what we have here is a live case of controversy in which Antoine Jones control of his vehicle was usurped and his car was converted into an electronic GPS transceiver serving the government. So that case is here, and it needs to be decided. One doesn't need to address technologies that aren't here for the Court today. You could, we could venture down that road, we could discuss drone surveillance, we could discuss bit balloons surveillance and other types of surveillance

. You can't do it for any more than five days. Or you can't do it to more than 50 people at a time. They can take care of all of that stuff. We can't do that in a decision under the Fourth Amendment. I, is this precisely the kind of a problem that you should rely upon legislatures to take care of? That's the same problem at the United States advance before this Court, the United States versus District Court. Give it to Congress. And with this Court there did, it held a Fourth Amendment violation so far as domestic security's concerned and gave Congress suggestions. In this particular case, I could probably give you 535 reasons why not to go to Congress, but let me suggest something, Justice Scalia, what happened was the United States has adopted a shifting position. They came to this Court and they said, we want a workable rule. Give us a workable rule, if you're either overruled with DC Circuit, which you should not do, or give us a workable rule. Now they've said in their brief, oh, let's take it to the legislature. They can't have it both. You take it to Congress the other way. I mean, can you say that a general search of this kind is not constitutional onto the Fourth Amendment, but should Congress pick out a subset thereof, say the terrorism or where there is reasonable cause or like the FISA court or a special courts to issue special kinds of warrants, that that's a different question which we could decide at a later time. That's a negative way of going. I mean, that way favors you in the result, but I've been looking for if there is a way of going to Congress to create the situations where they can do it rather than the situations where they can't. Justice Breyer, that was exactly what happened when the 400-tellings surveillance courts were created. You hit it right on the nail. Obviously, Court has to do with decide the narrow question before it, which I've articulated several times. I don't see why it's any of Congress's business if it's a purely intrast state operation. Congress can control police practices that don't violate the Fourth Amendment throughout the country. I mean, maybe interstate, interstate beepers and interstate tracking devices, yes, but so long as you track within the state, isn't that okay? No, Your Honor. First of all, I'll let me refer to Justice Frank Furtard's comments a long time ago in Watts versus Indiana. Justice is an ignorant of law of what they know to be true men and women, but other legislatures would follow Congress. But what we have here, what we have here is a live case of controversy in which Antoine Jones control of his vehicle was usurped and his car was converted into an electronic GPS transceiver serving the government. So that case is here, and it needs to be decided. One doesn't need to address technologies that aren't here for the Court today. You could, we could venture down that road, we could discuss drone surveillance, we could discuss bit balloons surveillance and other types of surveillance. But we don't have to. Well, there was a warrant. There was a warrant in this case. This is a puzzling aspect of the case to me, and maybe it's irrelevant for present purposes. There was a warrant. And the two violations are violations of a statute and a rule, neither of which may carry an exclusionary rule sanctioned with them, or an exclusionary rule penalty with them. It's not clear at all that there was a violation of the Fourth Amendment. So it's a little strange that we're deciding whether a warrantless search here would have been unconstitutional when there was a warrant. They had the choice. They could have gone back to the district judge and said, given the district. No, that's not my point. The point is that the violation of the 10-day rule and the violation of the statutory prohibition on, or maybe it's in the rule, the prohibition on the judge in the district, ordering the installation only in the district, are not Fourth Amendment requirements. No, that's correct, Your Honor. But what we have here is a warrantless intrusion. When the warrant, it's not a warrantless intrusion, there was a warrant. But the warrant was not in effect. At the time, the GPS was placed just as a little, there was no warrant. As a case, this Court decided, the Justice. I think I've been conceded by both sides. I mean, that's accepted by both sides. The warrant expired. There was no warrant. The government certainly could have gone back and said, Gents, we didn't make it. We needed a little more time. Give us 10 more days. They could have, they could have conceivably gone back there and explained it to the district judge why they couldn't have installed it in that period of time. But if you look at the lower court case law, you will find that the violation of the 10-day rule is not necessarily a violation of the Fourth Amendment. It doesn't, it doesn't, it doesn't, it doesn't, it doesn't, it doesn't necessarily dissolve or evaporate when the 10 days expire

. But we don't have to. Well, there was a warrant. There was a warrant in this case. This is a puzzling aspect of the case to me, and maybe it's irrelevant for present purposes. There was a warrant. And the two violations are violations of a statute and a rule, neither of which may carry an exclusionary rule sanctioned with them, or an exclusionary rule penalty with them. It's not clear at all that there was a violation of the Fourth Amendment. So it's a little strange that we're deciding whether a warrantless search here would have been unconstitutional when there was a warrant. They had the choice. They could have gone back to the district judge and said, given the district. No, that's not my point. The point is that the violation of the 10-day rule and the violation of the statutory prohibition on, or maybe it's in the rule, the prohibition on the judge in the district, ordering the installation only in the district, are not Fourth Amendment requirements. No, that's correct, Your Honor. But what we have here is a warrantless intrusion. When the warrant, it's not a warrantless intrusion, there was a warrant. But the warrant was not in effect. At the time, the GPS was placed just as a little, there was no warrant. As a case, this Court decided, the Justice. I think I've been conceded by both sides. I mean, that's accepted by both sides. The warrant expired. There was no warrant. The government certainly could have gone back and said, Gents, we didn't make it. We needed a little more time. Give us 10 more days. They could have, they could have conceivably gone back there and explained it to the district judge why they couldn't have installed it in that period of time. But if you look at the lower court case law, you will find that the violation of the 10-day rule is not necessarily a violation of the Fourth Amendment. It doesn't, it doesn't, it doesn't, it doesn't, it doesn't, it doesn't necessarily dissolve or evaporate when the 10 days expire. You know, those cases are wrong. There is a 1920 Supreme Court decision decided during the prohibition mirror specifically said that when a warrant expires, there is no warrant. When the 10-day rule, in that case, it expires, there's no warrant. We have a warrantless intrusion here. The government didn't have to do a warrantless intrusion. Thank you, Counsel. I have a favor to ask. Mr. Dreeben, five minutes. Mr. Chief Justice, advancing technology cuts in two directions. Technological advances can make the police more efficient at what they do, through some of the examples that were discussed today. Cameras, airplanes, beepers, GPS. At the same time, technology and how it's used can change our expectations of privacy in the ways that Justice Alito was alluding to. Today, perhaps GPS can be portrayed as a 1984 type invasion, but as people use GPS in their lives and for other purposes, our expectations of privacy surrounding our location may also change. Mr. Dreeben, that seems too much to me. I mean, if you think about this and you think about a little robotic device following you around 24 hours a day, any place you go that's not your home, reporting in all your movements to the police, to investigative authorities, the notion that we don't have a privacy interest would be violated by this robotic device. I'm not sure how one can say that. Justice Kagan, I think the court should decide that case when it comes to it. This was my fundamental point. This case does not involve universal surveillance of every member of this court or every member of the society. It involves limited surveillance of somebody who was suspected of drug activity. You probably haven't had the opportunity to go into the case. Hypothetical. Suppose exactly these facts only the police are involved, a neighbor does it to another neighbor in order to see where that neighbor is going in. And when he finds out he tells his wife and other neighbors, do you think that in most states that would be an invasion of privacy? I'm willing to assume that it might be Justice Kennedy, but I don't think that this court measures the meets and bounds of the Fourth Amendment by state law invasions of privacy. The court measures by expectations of privacy under the cats' tests if that may or may not be controlling

. You know, those cases are wrong. There is a 1920 Supreme Court decision decided during the prohibition mirror specifically said that when a warrant expires, there is no warrant. When the 10-day rule, in that case, it expires, there's no warrant. We have a warrantless intrusion here. The government didn't have to do a warrantless intrusion. Thank you, Counsel. I have a favor to ask. Mr. Dreeben, five minutes. Mr. Chief Justice, advancing technology cuts in two directions. Technological advances can make the police more efficient at what they do, through some of the examples that were discussed today. Cameras, airplanes, beepers, GPS. At the same time, technology and how it's used can change our expectations of privacy in the ways that Justice Alito was alluding to. Today, perhaps GPS can be portrayed as a 1984 type invasion, but as people use GPS in their lives and for other purposes, our expectations of privacy surrounding our location may also change. Mr. Dreeben, that seems too much to me. I mean, if you think about this and you think about a little robotic device following you around 24 hours a day, any place you go that's not your home, reporting in all your movements to the police, to investigative authorities, the notion that we don't have a privacy interest would be violated by this robotic device. I'm not sure how one can say that. Justice Kagan, I think the court should decide that case when it comes to it. This was my fundamental point. This case does not involve universal surveillance of every member of this court or every member of the society. It involves limited surveillance of somebody who was suspected of drug activity. You probably haven't had the opportunity to go into the case. Hypothetical. Suppose exactly these facts only the police are involved, a neighbor does it to another neighbor in order to see where that neighbor is going in. And when he finds out he tells his wife and other neighbors, do you think that in most states that would be an invasion of privacy? I'm willing to assume that it might be Justice Kennedy, but I don't think that this court measures the meets and bounds of the Fourth Amendment by state law invasions of privacy. The court measures by expectations of privacy under the cats' tests if that may or may not be controlling. Yes, but in Greenwood, the court dealt with a case where California had outlawed taking somebody's garbage. And this court said that did not define an expectation of privacy for purposes of the amendment. It found that there was no expectation of privacy. Correct. I'm asking you about this case, whether there would be an expectation of privacy, a general matter under the tort. No, I don't think so. And the fact that something may be a tort for a private person doesn't mean that it's a problem for the police to do it. For example, in the Dow Chemical case where the police used EPA, in that case, actually used cameras to surveil an industrial plant, there was a claim that it would have violated trade secret law for anybody else to do that. And the court accepted that and said, tort law doesn't define the boundaries of the Fourth Amendment. In knots, the court was very careful to reserve the possibility of 24-hour surveillance of every citizen in their persons and in their residences, saying, we haven't seen that kind of abuse. If that kind of abuse comes up, the legislature is the best equipped to deal with it. If, in fact, our society regards that as an unreasonable restriction. So you have any idea of how many GPS devices are being used by federal government agencies and state law enforcement officials? The federal government, I can speak to, and it's in the low thousands annually. It's not a massive universal use of an investigative technique. The FBI requires that there be some reasonable basis for using GPS before it installs it. And as a result, this is a technique that basically supplements visual surveillance rather than supplanting it altogether. There was visual surveillance that was directed at Respondent. The GPS allowed it to be more effective as Justice Kennedy, and I think that Justice Scalia's hypotheticals illustrated, of Respondent is essentially conceding that around the clock visual surveillance through teams of agents would not have invaded any expectation of privacy. This Court said in knots that police efficiency has never been equated with police unconstitutionality. The fact that GPS makes it more efficient for the police to put a tail on somebody invades no additional expectation of privacy that they otherwise would have had. The technology doesn't make something private that was previously public. When we go out in our cars, our cars have driver's licenses that we carry. We have license plates on the car. These are for the purpose of identification. You don't seriously argue that there isn't a possessory interest in who puts something on your car and who, like a sign of some sort. Oh, I think there would probably be some sort of state law, possessory interest, Mr. Chief Justice may I finish. But there is no seizure for the very reason that Justice Breyer described under the Katz case

. This Court has said that trespasses neither necessary nor sufficient to create a Fourth Amendment violation. Thank you, Mr. Dreeben. Counsel, the case is submitted