Last week, the media gleefully reported that that the Court in United States v. Jones held that warrantless use of GPS to track a car on public roads is unreasonable and therefore impermissible under the Fourth Amendment. Numerous writers have pointed out that this description is simply not true. The majority merely held that the police’s use of GPS was a search; it expressly declined to decide whether that search was reasonable, because the government failed to argue the point.
I would like to address another issue left open by the Court’s narrow holding: People seem to take for granted that if the Court deems warrantless GPS tracking on public roads unreasonable, it would exclude any evidence the police had gathered, but that assumption is unwarranted (pun intended).
The Exclusionary Rule does not appear in the Constitution; it is a judge-made rule aimed at safeguarding Fourth Amendment rights by deterring police misconduct. It is well established that the Exclusionary Rule should only be applied “where its deterrence benefits outweigh its substantial social costs,” and the Court has stated that it will not apply the rule “indiscriminately,” “mechanically,” or “reflexively.” There are other remedies for Fourth Amendment violations, notably civil suits, which have far lower societal costs than exclusion and are the more appropriate remedy when exclusion is not necessary to protect the relevant Fourth Amendment interest.
In a 2006 case, Hudson v. Michigan, the Supreme Court declined to apply the exclusionary rule when the police admittedly violated the Fourth Amendment by failing to “knock and announce” their presence before entering a suspect’s home. Justice Scalia, who wrote the majority opinion in both Hudson and Jones, noted that the Exclusionary Rule is “our last resort, not our first impulse.” Perhaps even more importantly, Justice Kennedy concurred and noted that even when the Exclusionary Rule does not apply to certain Fourth Amendment rights, it does not mean that they are “trivial or beyond the law’s concern.” Proving the importance of the Fourth Amendment interest at stake is not sufficient to demonstrate that the Exclusionary Rule should apply.
In Hudson, Justice Scalia noted that one consideration in determining whether to apply the Exclusionary Rule is whether the application protects the specific Fourth Amendment right the police violated. In Hudson, the Court did not apply the Exclusionary Rule because the Fourth Amendment interests at issue did not include “the shielding of potential evidence from the government’s eyes.” Similarly, in Jones, where all of the evidence occurred in public, the interest at sake was not the shielding of evidence from the government’s eyes.
In a typical Fourth Amendment case, the police unconstitutionally enter a suspect’s property to gather evidence that the suspect had intended to keep private. In those cases the protected Fourth Amendment interest is in keeping the potential evidence private. The application of the Exclusionary Rule in such situations returns the evidence to the privacy in which it was shrouded prior to the police’s unconstitutional search. The GPS tracking in Jones presents a different case because all of the information gathered was publicly available, namely the location of the defendant’s car on public roads. In that situation the suspect expressed no interest in keeping the potential evidence private; he voluntarily shared it with the public at large. The Fourth Amendment interest at issue was the manner of collection, not the publicly available information itself. In such a case, exclusion of the evidence would put the suspect in a better position than he was in before the search. The Court would be taking evidence that the suspect himself had thrust into the public eye and making it private. This windfall goes well beyond what is needed to protect the relevant Fourth Amendment interest.
Under such circumstances the societal costs surely outweigh the benefits of applying the rule. The societal costs of suppression are obvious: the possible release of dangerous criminals onto the streets because the evidence necessary to convict them has been suppressed. The benefits of applying that specific remedy are an unexpected and unnecessary award to the accused. A civil suit would be a more appropriate remedy in such a situation because, as Justice Kennedy has noted, civil suites “provide restitution for discrete harms.” In this case, a civil suit could deter the police from acting unconstitutionally and fully remedy the harm suffered without arbitrarily granting a windfall to the accused or subjecting the public to unnecessary danger.
Even if the Court does eventually decide that GPS searches, which only provide the police information regarding the location of a suspect’s car on public roads, require a warrant, the proper remedy will be civil suits and not the exclusionary rule.
— Howard Slugh is an attorney in Washington, D.C.