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No. 10-1259

IN THE

SUPREME COURT OF THE UNITED STATES

________________

SPRING TERM 2012

_________________

UNITED STATES OF AMERICA,

Petitioner,

v.

Antoine JONES,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALSFOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT

Round 1, 6:00 p.m. Giovanni Garcia Macias

Round 2, 6:45 p.m. 200 McAllister Street

March 20, 2012 San Francisco, CA 94102

(619) 942-7347

Counsel for Respondent


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QUESTIONS PRESENTED

I. Did the government violate Antoine Jones's Fourth Amendment rights when it used a GPS

tracking device to monitor his vehicle continuously for twenty-eight days without a warrant

and without Jones's consent?

II. Did the government violate Jones's Fourth Amendment rights when it installed a GPS

tracking device on the undercarriage of his vehicle without a warrant and without Jones's

consent?

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TABLE OF CONTENTS

Page

......................................................................................QUESTIONS PRESENTED 2

...........................................................................................TABLE OF CONTENTS 3

......................................................................................TABLE OF AUTHORITIES 5

....................................................................................................OPINION BELOW 7

........................................................................................................JURISDICTION 7

...................................................................................STATEMENT OF THE CASE 8

Preliminary Statement.................................................................................... 8

Statement of Facts.......................................................................................... 9

..................................................................................SUMMARY OF ARGUMENT 10

.............................................................................................................ARGUMENT 12

I. THE FBI'S WARRANTLESS USE OF GPS SURVEILLANCE

VIOLATED JONES'S FOURTH AMENDMENT RIGHTS BECAUSE HE

MANIFESTED A REASONABLE EXPECTATION OF PRIVACY IN HIS..........................................................TOTAL MOVEMENTS OVER TIME 12

A. Jones's Expectation of Privacy in his Aggregate Movements while

Driving is Objectively Reasonable, because a Person's Aggregate

Movements Can Reveal Intimate Details of that Person's Life. ........ 12

B. Jones Manifested a Subjective Expectation of Privacy in his

Aggregate Movements. ...................................................................... 19

II. THE WARRANTLESS INSTALLATION OF A GPS TRACKING

DEVICE ONTO JONES'S JEEP CONSTITUTED AN UNREASONABLESEIZURE BECAUSE IT MEANINGFULLY INTERFERED WITH

..................................JONES'S POSSESSORY INTERESTS IN HIS JEEP. 20

A. By Installing the GPS Tracking Device, the Government Converted

Jones's Jeep to its Own Purposes, without Jones's Consent or

Knowledge.. ....................................................................................... 20

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TABLE OF CONTENTS (CONT.) Page

B. By Installing the GPS Tracking Device, the Government Intruded

on Jones's Right to Exclude Uninvited Third Parties from His

Property. ............................................................................................. 23

C. The Intrusiveness of the Government's Interference with Jones's

Possessory Interests Outweighs the Government's Interest in

Undertaking an Efficient Investigation.............................................. 24

..........................................................................................................CONCLUSION

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TABLE OF AUTHORITIES

Page(s)

CASES

UNITED STATES SUPREME COURT

Berger v. New York,

.........................................................................................388 U.S. 41 (1967) 21

Bond v. United States,

.......................................................................................529 U.S. 334 (2000) 14, 17, 18, 19

California v. Ciraolo,

.......................................................................................476 U.S. 207 (1986) 14, 15, 19

California v. Greenwood,

.........................................................................................486 U.S. 35 (1988) 14, 15

Johnson v. United States,

.........................................................................................333 U.S. 10 (1948) 12, 19

Katz v. United States,

.......................................................................................389 U.S. 347 (1967) Passim

Kyllo v. United States, ...................................................................................533 U.S. 27, 36 (2001) 18

Silverman v. United States,

.......................................................................................365 U.S. 505 (1961) 21, 22

Unites States Department of Justice v. Reporters Committee for Freedom of Press

...............................................................................489 U.S. 749, 757 (1989) 15, 16

United States v. Jacobson,

.......................................................................................466 U.S. 109 (1984) 20, 22

United States v. Karo,

.......................................................................................468 U.S. 705 (1984) 19, 21, 22, 23

United States v. Knotts,

.......................................................................................460 U.S. 276 (1983) 12, 13, 16

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TABLE OF AUTHORITIES (CONT.)

Page(s)

United States v. Place,

.......................................................................................462 U.S. 696 (1983) 20, 24

UNITED STATES COURTS OF APPEALS

United States v. Garcia,

..........................................................................474 F.3d 994 (7th Cir. 2007) 22

United States v. Maynard,

................................................................615 F.3d 544, 568 (D.C. Cir. 2010) 9

United States v. Va Lerie,

..........................................................................424 F.3d 694 (8th Cir. 2005) 22

STATUTES

UNITED STATES CONSTITUTION

................................................................................................U.S. Const. amend. IV 12

FEDERAL STATUTES

.......................................................................................21 U.S.C. 841, 846, 851. 8, 9

..................................................................................................28 U.S.C. 1254 (1) 7

OTHER AUTHORITIES

Renee M. Hutchins, Tied Up in Knotts? GPS Technology and the Fourth

Amendment ..................................................., 55 UCLA L. Rev. 409 (2007) 13, 16, 18, 19

Viviek Kotharl, Autobots, Decepticons, and Panopticons: The Transformative

Nature of GPS Technology and the Fourth Amendment, 6 Crim. L. Brief 37

.............................................................................................................(2010) 16, 21

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No. 10-1259

IN THE

SUPREME COURT OF THE UNITED STATES

SPRING TERM 2012

UNITED STATES OF AMERICA,

Petitioner,

v.

Antoine JONES,

Respondent.

ON WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

BRIEF FOR RESPONDENT

OPINION BELOW

The opinion of the United States Court of Appeals for the District of Columbia Circuit is

reported at United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010).

JURISDICTION

The jurisdiction of this Court is invoked pursuant to 28 U.S.C. 1254 (1).

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STATEMENT OF THE CASE

Preliminary Statement

On September 16, 2005, the District Court of the District of Columbia granted an order

allowing the Federal Bureau of Investigation ("FBI") to install and use a Global Positioning

System ("GPS") tracking device on respondent Antoine Jones's Jeep Grand Cherokee, as part of

a narcotics investigation. (J.A. 21-26.) The order allowed the agents to track the vehicle for

ninety days in any jurisdiction and without interruption. (J.A. 32, 33.) The order required the

device to be installed within the boundaries of the district court's jurisdiction in Washington,

D.C., no later than ten days after issuance. (J.A. 33.) The FBI installed the GPS device in

Maryland, after the installation period had lapsed. (J.A. 250.) Subsequently, the FBI used the

GPS tracking device to monitor Jones's movements twenty-four hours a day, for a total of

twenty-eight days. (J.A. 250.)

The surveillance ended with the arrest of Jones and several alleged co-conspirators on

October 24, 2005. (J.A. 225.) Jones and the others were charged with several counts, including

conspiracy to distribute and possess with intent to distribute cocaine and cocaine base. (J.A. 224,

225.) In the ensuing jury trial, Jones moved to suppress the evidence obtained from the

electronic tracking device. (J.A. 12.) The district court denied the motion. (J.A. 14.) The jury

acquitted Jones on all counts except the conspiracy charge, on which it could not reach a verdict;

the court declared a mistrial. (J.A. 15, 16.)

On March 21, 2007, the government filed a superseding indictment, charging Jones and

others with a single count of conspiracy to distribute and to possess with intent to distribute five

or more kilograms of cocaine and fifty or more grams of cocaine base. 21 U.S.C. 841, 846,

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851. (J.A. 35, 67.) On January 10, 2008, Jones was convicted on this count and sentenced to life

in prison, concurrent with ten years of supervised release and ordered to pay $2,100 in

restitution. (J.A. 18, 19.) Jones appealed his conviction to the United States Court of Appeals

for the District of Columbia. (J.A. 20.)

The court of appeals reversed, holding that Jones's conviction was obtained with evidence

acquired in violation of his Fourth Amendment rights. United States v. Maynard, 615 F.3d 544,

568 (D.C. Cir. 2010). The government's petition for a rehearing en banc was denied. (J.A. 4, 5.)

On June 27, 2011, this Court granted petitioner's writ of certiorari. (J.A. 6, 223.)

Statement of Facts

For twenty-eight days, respondent Antoine Jones's every move while driving his Jeep

Grand Cherokee was monitored secretly and continuously by the government, without Jones's

consent and without a warrant. (J.A. 250.) On September 27, 2005, the F.B.I. attached a GPS

tracking device to the undercarriage of Jones's Jeep in Maryland, pursuant to a warrant issued in

another jurisdiction and after the warrant's specified installation period had lapsed. (J.A. 100,

250.)

The GPS device the FBI used to track Jones was motion activated. (J.A. 87.) While the

Jeep was still, the device remained in 'sleep mode,' shut off to conserve energy. (J.A. 129.)

When the device sensed motion, it would start collecting and storing coordinate points

corresponding to Jones's location while driving his Jeep, along with the date and time of each

coordinate point. (J.A. 115, 119.) The GPS device could then relay the location data over a

cellular network to the monitoring agents. (J.A. 80.) Agents could retrieve the location data by

downloading it to a laptop; then, the agents could print the data or display it on a laptop's screen

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using specialized software. (J.A. 82, 114.) The agents could also monitor the Jeep's movements

live. (J.A. 78.)

Before the GPS device was installed, the FBI, as part of the Safe Streets Task Force,

already had extensive surveillance in place. (J.A. 102.) Investigators conducted physical

surveillance, parking agents outside a night club Jones owned. (J.A. 103.) Eventually, the

investigators installed a stationary pole camera to monitor the club's entrance continuously. (J.A.

104.) Investigators also monitored Jones's phone calls. (J.A. 92.) Once the GPS device was in

place, the FBI continued to use a comprehensive mix of telephone, video, physical, and GPS

surveillance to monitor Jones's activities. (J.A. 142.) On October 15, 2005, the tracking device's

batteries ran out of power and the device stopped collecting location data. (J.A. 111.) Five days

later, investigators located Jones's car and replaced the batteries. (J.A. 112, 131, 134.)

Using the GPS tracking data, the FBI integrated their physical, video, and phone

surveillance to establish that Jones frequented a house on 9508 Potomac Drive and that he often

associated with a group of persons believed to be narcotics traffickers who also frequented that

house. (J.A. 121-23, 142, 216-22.)

On October 24, 2005, the FBI served warrants to search the house on 9508 Potomac

Drive, and found ninety-seven kilograms of cocaine, three kilograms of cocaine base, and over

$800,000; Jones was not at the house. (J.A. 153,155, 225.) The FBI also searched Jones's Jeep,

inside the garage of Jones's home, and found just over $69,000, but no narcotics. (J.A. 182.)

The FBI arrested Jones and his alleged co-conspirators. (J.A. 225.)

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SUMMARY OF ARGUMENT

The decision of the D.C. Circuit should be affirmed. Under the analytical framework

provided in Katz, the use of GPS constituted an unreasonable search under the Fourth

Amendment. Jones held a reasonable expectation of privacy in his aggregate movements

because a person's aggregate movements can reveal intimate details of his or her life. Moreover,

Jones's desire to keep his activities private was manifest. First, Jones referred to his activities

using coded language, showing he wished to keep them private. And second, the FBI recognized

that if Jones were to be physically followed for an extended period, he would notice and

presumably take evasive measures.

Furthermore, the installation of the GPS tracking device constituted an unreasonable

seizure under the Fourth Amendment. Under the framework set out in Jacobson, the installation

was a seizure because the government intruded on Jones's possessory interests, by converting

Jones's Jeep from a means of transportation to a means of government surveillance and by

infringing Jones's right to exclude others from his property. Under Place, the seizure was

unreasonable because the intrusiveness of the government's actions outweigh its interest in

conducting more efficient investigations. Because the installation and use of the GPS device

constituted both a search and a seizure violative of the Fourth Amendment, this Court should

affirm the D.C. Circuit's decision.

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ARGUMENT

I. THE FBI'S WARRANTLESS USE OF GPS SURVEILLANCE

VIOLATED JONES'S FOURTH AMENDMENT RIGHTS BECAUSE HE

MANIFESTED A REASONABLE EXPECTATION OF PRIVACY IN HIS

TOTAL MOVEMENTS OVER TIME.

The Fourth amendment provides that the right of the people to be secure in their

persons, houses, papers and effects, against unreasonable searches and seizures, shall not be

violated." U.S. Const. amend. IV. In Katz v. United States, this Court provided the

contemporary analytical framework for Fourth Amendment searches: If the government violates

1) an objectively reasonable expectation of privacy 2) that a person subjectively and manifestly

holds, the government has performed a Fourth Amendment search. 389 U.S. 347, 361 (1967)

(Harlan, J., concurring). Government 'searches' are presumptively unreasonable if warrantless.

Johnson v. United States, 333 U.S. 10, 13-14 (1948).

A. Jones's Expectation of Privacy in his Aggregate Movements while

Driving is Objectively Reasonable, because a Person's Aggregate

Movements Can Reveal Intimate Details of that Person's Life.

When this Court held in United States v. Knotts that "a person traveling in an automobile

on public thoroughfares has no reasonable expectation of privacy," it did not mean to extend an

open invitation to government surveillance on the public streets. 460 U.S. 276, 281 (1983).

In Knotts, this Court expressly set aside the question whether constant, prolonged

surveillance is constitutional. Id. at 284. Knottsinvolved a criminal suspect tracked during a

single, one-way drive. Id.at 283. There, this Court cautioned that its holding did not endorse

"twenty-four hour surveillance of any citizen of this country." Id.at 284.

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Yet that is the extent of surveillance at issue here not only did the government track

Jones's for twenty-four hours, it did so over twenty-eight days. The case at bar thus exceeds the

scope this Court set for the Knottsholding.

Knotts is also distinguishable because the type of surveillance Knotts contemplated is far

less intrusive than the surveillance at issue here. InKnotts,police used a 'beeper' concealed in a

tub of chloroform to track a suspect to his secluded cabin. 460 U.S. at 277. Beepers emit a weak

radio signal that a receiver within range can pick up. Renee M. Hutchins, Tied Up in Knotts?

GPS Technology and the Fourth Amendment, 55 UCLA L. Rev. 409, 435 (2007). A beeper does

not store any information about a vehicle's whereabouts, nor does it transmit the suspect's

location per se. Id. at 435. Rather, beepers alert the monitoring officer as the suspect vehicle

nears, serving to gauge rough proximity. Id. For that reason, an officer must be within a beeper's

limited range for it serve any surveillance purpose at all. Id.

GPS tracking devices are very different from beepers. GPS receivers use dedicated

satellites to calculate latitude, longitude, and altitude, as well as speed and direction of travel if

the receiver is moving. Id.at 417. GPS receivers currently can calculate locations to within two

meters. Id. To serve as tracking devices, GPS receivers are coupled with a transmitter, which

relays the location data to third parties as distant as the transmitter technology allows. Id. at 418.

The motion activated GPS device the FBI used to track Jones was sensitive enough to be

set off by the wind. (J.A. 87.) It stored all the location data it gathered, which its transmitter

could relay over a cellular network. (J.A. 80.) Accordingly, the monitoring agents were neither

limited by time nor distance they could monitor the Jeep's location live from anywhere within

reach of a cellular signal, or retrieve the stored history of location information by downloading it

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to a laptop or by printing it. (J.A. 82, 114.) Because the GPS device stored the location

information it gathered, the data could be analyzed long after the tracking itself had ended.

As a "legacy" model, the device used to track Jones was less accurate than newer models

the FBI uses. (J.A. 86.) The location data the device collected could include variances of fifty to

one hundred feet when the device was physically obstructed. (J.A. 81, 141.) Still, the GPS

device ultimately collected enough data to fill over two-thousand pages; indeed, the data of a

single day, printed in part, amounted to a four-inch stack of paper. (J.A. 109-10, 128.)

Accordingly, the capacity for precise, truly remote tracking, and the sheer bulk of data GPS

devices can collect and store, sets GPS tracking devices far apart from beepers.

By leveraging this enhanced quality and quantity of data that GPS tracking provides, the

FBI discovered not just the routes Jones chose to travel, but the routines of his personal life. By

doing so, the government intruded on what Jones could reasonably expect should remain private.

In Katz, this Court reasoned that "[w]hat a person knowingly exposes to the public . . . is

not subject to Fourth Amendment protection." 389 U.S. at 351. Subsequently, this Court has

held consistently that what a person exposes to the public does not depend on what that person

expects members of the public can possibly or lawfully come to know, but on what he or she

reasonably expects members of the public canplausibly to come to know. See California v.

Greenwood, 486 U.S. 35, 40 (1988); California v. Ciraolo, 476 U.S. 207, 213-14 (1986); Bond v.

United States, 529 U.S. 334, 338-39 (2000).

For example, in Ciraolo, police investigators chartered a private plane to observe a

suspect's walled-off yard from 1000 feet overhead; the investigators identified a large plot of

marijuana plants growing in the yard. Id. at 209. This Court held that "[i]n an age where private

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and commercial flight in the public airways is routine," an expectation that crops growing in an

uncovered field should remain private is not objectively reasonable. 476 U.S.at 214.

Similarly, in Greenwood, an investigator obtained the discarded trash bags of a suspected

narcotics dealer from a trash collector, and found drug paraphernalia inside. Id.at 37-38. This

Court ruled that any expectation of privacy the suspect held in his discarded trash was not

reasonable because the trash collector or any passerby could plausibly inspect it. Id.at 40.

Jones's aggregate movements over the course of a month were not plausibly revealed to

any single member of the public. As Jones drove along public streets, Jones's Jeep could be

viewed by any member of the public near enough to see it. Each individual trip was as exposed

to public scrutiny as the uncovered field in Ciraoloor the discarded trash bags in Greenwood.

Still, that each person who happened to view the Jeep, during the FBI's round-the-clock, month-

long surveillance would collaborate to create an uninterrupted log of Jones's turn-by-turn

movements is so implausible as to defy reasonable belief. Yet that is exactly what the FBI's

longterm GPS surveillance revealed. For these reasons, the fact that any one of Jones's

movements could be viewed by the public does not dispense with his claim to an objectively

reasonable expectation of privacy in his aggregate movements.

Jones's expectation that his aggregate movements should remain private is also

objectively reasonable because knowing a person's total movements can reveal intimate details of

that person's life not revealed by any single movement.

In Unites States Department of Justice v. Reporters Committee for Freedom of Press,

respondents sought to acquire summaries of the criminal records of certain individuals, their 'rap

sheets.' 489 U.S. 749, 757 (1989). This Court refused the requested disclosure because, though

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"individual events in those [rap sheets were] matters of public record," the Court recognized a

"distinction, in terms of personal privacy, between scattered disclosure of the bits of information

contained in a rap sheet and revelation of the rap sheet as a whole." 489 U.S. at 764.

In the present case, investigators did not simply use the GPS data to identify Jones's

location on the public streets, as did investigators in Knotts who used the beeper simply to follow

the suspect to his remote cabin. 460 U.S. at 277. Here, the FBI used GPS tracking to determine

Jones's role in an alleged trafficking conspiracy. (J.A. 22.) In conjunction with other forms of

surveillance, the FBI used the GPS data to learn the precise patterns of Jones movements and

thus infer his activities and associates. (J.A. 121-23, 142, 216-22.)

Analogous to the rap sheets in Reporters Committee, the mass of data that GPS tracking

aggregates allows the FBI to piece together the "scattered . . . bits of information" that Jones's

discrete movements represented, into a completed whole. 489 U.S. at 764. However, GPS

tracking devices do not differentiate between criminal and non-criminal activity. Viviek Kotharl,

Autobots, Decepticons, and Panopticons: The Transformative Nature of GPS Technology and the

Fourth Amendment, 6 Crim. L. Brief 37, 43 (2010). In contrast to the rap sheets which could

only reveal criminal activities, the 2,200 pages of GPS data could be used to extrapolate details

of Jones's personal affairs unrelated to the investigation. See Kotharl, 6 Crim. L. Brief at 43.

For example, a suitably motivated FBI agent could have determined whether Jones attended a

church, and if so, how often. See Hutchins, 55 UCLA L. Rev. at 409. In this manner, agents

could have inferred Jones's religion, or given other movement patterns, Jones's political leanings,

personal habits, or vices. See Id. For these reasons, GPS tracking reveals more that facts about a

person's movements; it can reveal facts about a person's way of life.

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This Court has held that expectations of privacy involving less intrusive government

action are reasonable and should accordingly find Jones's subjective expectation of privacy to be

reasonable.

In Katz, the government placed an electronic listening device on the exterior of a

telephone booth from which the government suspected Katz conducted criminal activity. 389

U.S. at 348. The government monitored and recorded six of Katz's telephone calls, each lasting

approximately three minutes. Id. at 354 n. 14. This Court held that by enclosing himself in a

transparent, public telephone booth, Katz enjoyed a reasonable expectation of privacy in what he

said. Id.at 352.

Likewise, in Bond, a Border Patrol Agent squeezed a bus passenger's luggage to inspect

its contents. 529 U.S. at 336. This Court held that although Bond could not reasonably expect

privacy over having his luggage handled, he did enjoy a reasonable expectation of privacy over

having his luggage squeezed. Id.at 338-39.

In the present case, the FBI's GPS monitoring of Jones's movements far exceeded both

the duration and scope of surveillance of each of these cases. Here, the GPS surveillance took

place over twenty-eight days, as opposed to the six, three-minute calls in Katz or the mere

moments Bond's luggage was inspected in Bond. The difference in duration serves to make the

GPS surveillance at issue here more intrusive than that in Katzor Bond.

Similarly, the GPS surveillance provided much more context than did the surveillance in

Katzor Bond. The "Wind Track" software plotted Jones's every movement onto a map,

providing the exact time, date, as well as the streets on which Jones traveled. (J.A. 114-15, 119.)

This allowed the government to integrate its physical, video, and phone surveillance to try to

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show that Jones was not an incidental visitor to the drug house nor the casual acquaintance of a

group of alleged traffickers. (J.A. 121-23, 142, 216-22.) Indeed, it was through the GPS data

that the FBI first linked Jones to the drug house. (J.A. 122.)

In Katz, the listening device only captured Katz's end of his brief conversations, revealing

little about Katz's interlocutor(s). 389 U.S. at 348. The agent in Bondcould not know, by

squeezing Bond's luggage, the origin of the narcotics within, nor their destination or intended

use. The agent's tactile exploration could not so much as hint at who had sent the narcotics nor

who would receive them. The degree of context a GPS device provides serves to make it more

intrusive, not less, than government action that this Court has held violated reasonable

expectations of privacy.

The intrusive potential of GPS monitoring is especially patent when considering, as this

Court has said it must, "more sophisticated systems that are already in use or in development."

Kyllo v. United States, 533 U.S. 27, 36 (2001). Today, differential GPS (DGPS) receivers can

calculate locations to within centimeters. Hutchins, 55 UCLA L. Rev. at 417-18. Whereas the

GPS device used to track Jones worked best outdoors when free from obstructions, contemporary

devices work equally well indoors and out. Id. at 420. Contemporary GPS devices are

becoming ever more compact. Id. at 419. The Los Angeles Police Department deploys GPS

devices small enough to be fired as "darts" during high speed pursuits, enabling monitoring

officers to track the suspect vehicle in real time from police headquarters. Id. at 418-19. A GPS

device measuring less than five cubic inches and weighing slightly more than three ounces is on

the market today. Id. at 420-21. This means that GPS devices are now small enough to secretly

track an individual and/or her personal effects, indoors or out, with pinpoint accuracy. Id.at 458.

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Moreover, as GPS satellites can support a limitless number of GPS receivers, government agents

have the technical capacity to engage in tracking on nearly any scale. Hutchins, 55 UCLA L.

Rev.at 418.

The point is not that such Orwellian government surveillance is at hand. The point is that

on the standard the government urges, even such extensive and total surveillance would lie

beyond the Fourth Amendment's reach. Likewise, the point is not to deprive law enforcement of

an efficient and powerful surveillance tool. The point is simply to condition its extended use on

the granting of a warrant, thus placing the decision whether to deploy powerful surveillance

technologies against members of the American public with "a neutral and detached magistrate,"

not an "officer engaged in the often competitive enterprise of ferreting out crime." Johnson v.

United States, 333 U.S. 10, 13-14 (1948).

B. Jones Manifested a Subjective Expectation of Privacy in his

Aggregate Movements.

Jones manifested a desire to keep his activities private, as required by the Katztest. 389

U.S. at 361. An individual manifests a subjective expectation of privacy when he takes overt

steps to maintain privacy in something. Compare Ciraolo, 476 U.S. at 211-12 (suspect's

uncovered field did not manifest an expectation of privacy from aerial observation), with Bond,

529 U.S. at 338(suspect manifested an expectation of privacy in his bag's contents by "using an

opaque bag and placing that bag directly above his seat").

Here, in intercepted telephone calls, Jones seems to use coded terms, possibly to refer to

contraband, such as "ticket, small ticket, half ticket, VIP ticket." (J.A. 168.) Although the FBI

monitored Jones's telephone calls longer than it used GPS tracking, the record does not indicate a

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single departure from the coded language where Jones mentioned narcotics openly. (J.A. 93.)

This denotes an overt desire to keep his activities private.

To be sure, there is no evidence that Jones tried to evade public notice on any single trip

by, say, taking rural roads. Yet the FBI admits that following a vehicle for extended periods is

"usually not a very good idea . . . [u]nless you want them to know you're following them." (J.A.

97.) Indeed, the FBI decided to track Jones remotely through GPS surveillance because they

feared that if they were to follow Jones's Jeep using physical surveillance, Jones would notice

and presumably avoid them. (J.A. 107.) The fact that Jones did not try to keep single trips

hidden but likely would evade long term physical observation manifests an intent to keep the

latter private.

II. THE WARRANTLESS INSTALLATION OF A GPS TRACKING

DEVICE ONTO JONES'S JEEP CONSTITUTED AN UNREASONABLE

SEIZURE BECAUSE IT MEANINGFULLY INTERFERED WITH

JONES'S POSSESSORY INTERESTS IN HIS JEEP.

A Fourth Amendment 'seizure' occurs when "there is some meaningful interference with

an individual's possessory interests in [his or her] property. United States v. Jacobson, 466 U.S.

109, 113 (1984). A 'seizure' is unreasonable if the "nature and quality of the intrusion" on an

individual's possessory interests outweighs the "importance of the governmental interests alleged

to justify the intrusion." See United States v. Place, 462 U.S. 696, 703 (1983).

A. By Installing the GPS Tracking Device, the Government Converted

Jones's Jeep to its Own Purposes, without Jones's Consent or

Knowledge.

When the FBI attached the GPS tracking device, the Jeep ceased to serve exclusively as

Jones's means of transportation; the Jeep coupled with the GPS device became a sophisticated

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means of government surveillance. This interference is enough to constitute a seizure under this

Court's existing Fourth Amendment jurisprudence.

A seizure may take place even if a physical deprivation of property does not occur. See

Berger v. New York, 388 U.S. 41, 56-57, 59 (1967). For example, in Berger, investigators

secretly placed a recording device in a suspect's office and recorded his conversations for two

weeks. 388 U.S. at 44-45. As a mere recording of the suspect's voice, the surveillance did not

physically deprive the suspect of anything. Kotharl, 6 Crim. L. Brief at 43. This Court held that

by recording the suspects conversations, the government committed a Fourth Amendment

seizure. Id.at59.

When the government usurps the functions of private property to advance government

surveillance, it violates the Fourth Amendment. Silverman v. United States, 365 U.S. 505, 511

(1961). In Silverman, police officers used a 'spike mic' listening device to eavesdrop on the

conversations of criminal suspects while in a building the suspects owned. 365 U.S.at 506. The

officers inserted a foot long spike under a baseboard, making contact with the heating duct of the

suspects building. Id. 506-07. The spike mike picked up the sound vibrations of the suspect's

voice resonating through the heating system. Id. at 507. By doing this, the officers effectively

converted the heating system into "a giant microphone, running through the entire house

occupied by appellants." Id. at 509. This Court held that "by usurping part of the petitioners

house or office," the officers violated the suspects' Fourth Amendment rights. Id. at 511-12.

To constitute a seizure, a government intrusion must be more than a mere "technical

trespass." See United States v. Karo,468 U.S. 705, 713 (1984). In Karo, a criminal suspect

unknowingly purchased a can of ether with a 'beeper' hidden inside. Id. at 708. The Karo

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majority reasoned that since the 'beeper' simply took up space in the can, its presence did not

meaningfully interfere with any possessory interests. 468 U.S.at 713. More recently, Judge

Posner echoed Karo, holding that the installation of a GPS device was not a seizure because the

device "did not affect . . . driving qualities, did not draw power from the car's engine or battery,

did not take up room that might otherwise have been occupied by passengers or packages, [nor]

even alter the car's appearances." United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007).

GPS tracking devices do much more than fill space. Seizure analysis encompasses two

elements: 1) there must exist a possessory interest; and 2) the government must meaningfully

intrude on that interest. See Jacobsen, 466 U.S. at 703. If a possessory interest exists, the

government intrudes on it if it exercises dominion and control over that interest. Id. at 120-21.

This court has recognized, albeit in dissent, that a property owner has an exclusive right

to use his property for his own purposes. Karo, 468 U.S. at 729 (Stevens, J., dissenting). The

exercise of dominion and control over that right is more than a trespass; it constitutes a tort of

conversion. United States v. Va Lerie, 424 F.3d 694, 702-03 (8th Cir. 2005).

Here, the Jeep was Jones's primary means of transportation. (J.A. 182, 214.) When

Jones drove it, be it to his nightclub or to the gym, he likely did not intend that his Jeep serve as a

beacon, alerting the government of his every turn. Yet the moment the FBI attached the GPS

device to Jones's car, the Jeep stopped serving Jones's exclusive purposes. As with the heating

duct in Silverman,the government converted Jones's Jeep to serve itspurpose to track Jones,

without informing Jones nor seeking his consent. Consequently, the government's intrusion went

beyond the volume of space the GPS device filled and beyond the nominal additional power the

Jeep expended because of the added weight. The attachment of the GPS device transformed

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Jones's entire Jeep into a broadcaster of Jones's movements. Although the government did not

deprive Jones of the possession of his Jeep, just as the police in Berger did not deprive the

suspects of their voices by recording them, the government intruded upon Jones's possessory

rights. By doing this, the government seized Jones's property within the meaning of the Fourth

Amendment.

B. By Installing the GPS Tracking Device, the Government Intruded

on Jones's Right to Exclude Uninvited Third Parties from His

Property.

A property owner may, of right, exclude "all the world" from his property; the FBI flouted

this right by physically attaching the GPS device to Jones's Jeep. Karo, 468 U.S. at 729

(Stevens, J., dissenting). Although this Court seemingly dismissed that mere intrusions on the

right to exclude constituted a seizure in Karo,the intrusiveness of the installation in the present

case exceeds that considered in Karo. Id. at 713.

In Karo, the beeper was installed on the permission of a third party who owned the can of

ether and later sold it to the suspect. Id. at 708. Consequently, the beeper was not installed

directly onto the suspect's car; it was hidden in an item he purchased. Moreover, because the

suspect purchased the can, he arguably accepted its contents, tracking device and all. On these

facts, it stands to reason that the this Court found the interference too muted to constitute a

seizure. Id. at 713.

Here, conversely, no third party with a possessory interest in Jones's Jeep authorized the

FBI to install the GPS device, nor did Jones purchase the Jeep with the device already in place.

To the contrary, the FBI directly attached the device onto the Jeep's undercarriage, without

intermediaries and without any permission. (J.A. 100.) It exerted dominion and control over the

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place in the undercarriage where the device was attached. Although the undercarriage is a part of

the car's exterior and thus is accessible to the public, the undercarriage contains vital components

of a car's drivetrain and motor. For this reason, a car owner has an especially acute interest in

barring third parties from introducing foreign objects into the undercarriage. Accordingly, when

the FBI attached the GPS device, it flouted Jones's right to exclude others from his property and

thereby undermined a fundamental possessory interest as proscribed by the Fourth Amendment.

C. The Intrusiveness of the Government's Interference with Jones's

Possessory Interests Outweighs the Government's Interest in

Undertaking an Efficient Investigation.

The government's intrusion on Jones's right to use his Jeep for his exclusive purposes and

on Jones's right to bar uninvited interference with his Jeep is not justified by the government's

interests in engaging in more efficient surveillance. Such an imbalance between the

intrusiveness of a government seizure and the government's countervailing interests in

conducting the seizure activates Fourth Amendment protections. Place, 462 U.S. at 703.

The FBI installed the GPS device on Jones's Jeep because they judged it more efficient

than long term visual tracking, which was difficult and burdensome to achieve successfully.

(J.A. 107.) Visual tracking involves rotating several vehicles to follow the target vehicle in an

effort to avoid detection. (J.A. 97.) GPS surveillance represents a cost effective alternative to

visual surveillance. Still, FBI agents testified that the data collected from the GPS surveillance

was not strictly necessary to connect Jones with the alleged traffickers and drug house. (J.A.

139.) Indeed, besides the GPS surveillance, the FBI used video, telephone, photographic, and

visual surveillance to monitor Jones's activities.

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The government's interest in using efficient GPS surveillance did not outweigh the

intrusiveness of that surveillance, especially given that the government already had extensive

non-GPS surveillance in place. As has been shown, the GPS device installation severely invaded

Jones's possessory rights: the government converted Jones's Jeep from a personal means of

transportation, to a government means of surveillance, ignoring Jones's right to exclude strangers

from sensitive areas of his property. Nothing in the record demonstrates an urgent need for the

government to infringe Jones's possessory rights in this way. There is no evidence that life or

limb was at stake or even that Jones might flee. Because the GPS device was not strictly

necessary to advance the government's interests, and because Jones's possessory interests were so

severely infringed, the installation of the GPS device constitutes an unreasonable search within

the meaning of the Fourth Amendment.

CONCLUSION

The government's unwarranted installation and use of the GPS tracking device was

unconstitutional. The use of GPS technology allowed the government to discover intimate

details of Jones's daily life, usually shielded from public scrutiny. This constituted an

unreasonable search. The installation of the GPS device, which the FBI admitted was

unnecessary to their investigation, converted Jones's personal means of transportation into a

means of government surveillance and flouted Jones's right to exclude. This constituted an

unreasonable seizure. For these reasons, Respondent respectfully requests that this Court

AFFIRM the decision of the D.C. Circuit, and uphold the vigorous constitutional protections of

property and privacy.

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Dated: March 1, 2012 Respectfully Submitted,

_____________________

Giovanni Garcia Macias

Counsel for Respondent

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