No. 10-1259444444444444444444444444444444444444444444

IN THE

Supreme Court of the United States____________________

UNITED STATES, Petitioner,v.

ANTOINE JONES, Respondent.____________________On Petition for Writ of Certiorari

to the United States Court of Appealsfor the District of Columbia Circuit____________________

BRIEF AMICUS CURIAE OF GUN OWNERS OFAMERICA, INC., GUN OWNERS FOUNDATION,

INSTITUTE ON THE CONSTITUTION, RESTORINGLIBERTY ACTION COMMITTEE, U.S. JUSTICE

FOUNDATION, CONSERVATIVE LEGAL DEFENSEAND EDUCATION FUND, FREE SPEECH

COALITION, INC., FREE SPEECH DEFENSE ANDEDUCATION FUND, INC., DOWNSIZEDC.ORG,

DOWNSIZE DC FOUNDATION, AND THE LINCOLNINSTITUTE FOR RESEARCH AND EDUCATION

IN SUPPORT OF NEITHER PARTY____________________JOSEPH W. MILLER HERBERT W. TITUS*

LAW OFFICES OF JOSEPH WILLIAM J. OLSON MILLER, LLC. JOHN S. MILESP.O. Box 83440 JEREMIAH L. MORGANFairbanks, AK 99708 WILLIAM J. OLSON, P.C.(907) 451-8559 370 Maple Ave. W., Ste. 4

Attorney for Amicus Restoring Vienna, VA 22180-5615Liberty Action Committee wjo@mindspring.com*Counsel of Record (703) 356-5070May 16, 2011 Attorneys for Amici Curiae

(Counsel continued on inside front cover.)444444444444444444444444444444444444444444

2

GARY G. KREEPU. S. JUSTICE FOUNDATION932 D StreetSuite 2Ramona, CA 92065(760) 788-6624

Attorney for AmicusU.S. Justice Foundation

TABLE OF CONTENTSPage

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . . . . . . . . . iii

INTEREST OF Amici Curiae . . . . . . . . . . . . . . . . . . . . . . . . 1

SUMMARY OF ARGUMENT . . . . . . . . . . . . . . . . . . . . . . . . . . 1

ARGUMENT

I. THE GOVERNMENT’S PETITION FOR A WRIT OFCERTIORARI SHOULD BE GRANTED TO RESOLVE THESPLIT AMONG THE CIRCUITS BY RESTORING THEFOURTH AMENDMENT TO ITS ORIGINAL TEXT ANDPURPOSE . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. THE ORIGINAL OBJECTIVE, PROPERTY-BASED TEXTAND PURPOSE OF THE FOURTH AMENDMENT SHOULDBE REVIVED AND APPLIED . . . . . . . . . . . . . . . . . . . . . . . 6

A. Two Rights, Not One . . . . . . . . . . . . . . . . . . . . . . . 7

B. The Property Right Is Primary . . . . . . . . . . . . . . . 9

C. The Warrant Requirement Is Secondary . . . . . . 11

III. THE CURRENT AD HOC, SUBJECTIVE, PRIVACY-BASEDVIEW OF THE FOURTH AMENDMENT SHOULD BEREJECTED . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 12

A. Privacy Interest Substituted for Property Rights 12

B. The Fourth Amendment Property PrincipleErased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

ii

C. The Warrant Requirement Undermined . . . . . . . 16

IV. THE FOURTH AMENDMENT PROTECTS NOT ONLYAGAINST THE SEIZURE OF DATA BY GPS DEVICES,BUT THE VERY USE OF SUCH DEVICES . . . . . . . . . . . . 19

V. THE FOURTH AMENDMENT PROTECTS THE PEOPLEFROM TYRANNY . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24

iii

TABLE OF AUTHORITIES

PageHOLY BIBLELuke 22:25 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

U.S. CONSTITUTIONAmendment IV . . . . . . . . . . . . . . . . . . . . . . . . . . 2, passimAmendment V . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 15

CASESBarnes v. Indiana, Sup. Ct. No. 82S05-1007-CR-343,

2011 Ind. LEXIS 353 . . . . . . . . . . . . . . . . . . . . . . . . 21Boyd v. United States, 116 U.S. 616 (1886) . . . . 1, passimCamara v. Municipal Court, 387 U.S. 523 (1967) . . . . . 22District of Columbia v. Heller, 554 U.S. 570 (2008) . . 5, 6Entick v. Carrington, 19 How. St. Trials 1030 (1765) . . 22Frank v. Maryland, 359 U.S. 360 (1959) . . . . . . . . . 21, 23Gouled v. United States, 255 U.S. 298 (1921) . . 3, passimKatz v. United States, 389 U.S. 347 (1967) . . . . . . . . . . . 3Warden v. Hayden, 387 U.S. 294 (1967) . . . . . . 2, passimUnited States v. Biswell, 406 U.S. 311 (1972) . . . . . . . . 22United States v. Knotts, 460 U.S. 276 (1983) . . . . . . . . 23

MISCELLANEOUST. Cooley, A Treatise on Constitutional Limitations,

(5th ed., Little, Brown: 1883) . . . . . . . . . . . . . 7, 18, 21N.B. Lasson, The History and Development of the

Fourth Amendment to the United StatesConstitution (Johns Hopkins Press 1937) . . . . . . . 8, 9

J. Locke, The Second Treatise on Civil Government,(1690) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 19

J. Scarboro & J. White, Constitutional CriminalProcedure (Foundation Press:1977) . . . . . . . . . . . . . 22

iv

Sources of Our Liberties,(R. Perry & J. Cooper, eds.,(ABA Found.: 1978) . . . . . . . . . . . . . . . . . . . . . . . . . . 8

1 It is hereby certified that the parties have consented to the filing ofthis brief; that counsel of record for all parties received notice at least 10days prior to the due date of the intention to file this amicus curiae brief;and that no counsel for a party authored this brief in whole or in part,and no person other than amici curiae, their members, or their counselmade a monetary contribution to its preparation or submission.

INTEREST OF THE AMICI CURIAE1

The amici, Gun Owners of America, Inc., Gun OwnersFoundation, Institute on the Constitution, Restoring LibertyAction Committee, U.S. Justice Foundation, ConservativeLegal Defense and Education Fund, Free Speech Coalition,Inc., Free Speech Defense and Education Fund, Inc.,DownsizeDC.org, and Downsize DC Foundation, the LincolnInstitute are educational organizations interested in theproper interpretation of the U.S. Constitution, most ofwhom have filed numerous amicus curiae briefs in priorlitigation, including cases in this Court.

SUMMARY OF ARGUMENT

The Government’s petition should be granted, but not forthe reasons stated therein. Instead, the petition should begranted to resolve a split among the circuits on the FourthAmendment’s relevance and application to covertinstallations of global positioning systems (“GPS”) on anAmerican citizen’s automobile by restoring the FourthAmendment to its original text and purpose. The conflictamong the circuits over the constitutionality of theinstallation of GPS is a product of this Court’s rejection of aproperty-based Fourth Amendment jurisprudence —embraced initially by a unanimous Court in Boyd v. UnitedStates, 116 U.S. 616 (1886), and adhered to for over 80years — substituting therefor a new rationale based uponan emerging right of privacy by a vote of only five justices in

2

Warden v. Hayden, 387 U.S. 294 (1967).

Relying on the Hayden rationale — that the Governmentmay search and seize any person, place or thing if there isno reasonable expectation of privacy — the Governmentcontends that the installation of a GPS on an automobile togather information of the vehicle’s movement on a publicroad was not even governed by the Fourth Amendment.Under the Boyd rule, the GPS installation would have beenbarred by the “mere evidence” rule, the Government havingno property interest in the GPS data sought, namely, theautomobile’s movements. By rejecting the “mere evidence”rule in favor of a “privacy” rationale, Hayden (i) disregardsthe textual meaning of the Fourth Amendment’s absoluteprohibition against “unreasonable searches and seizures”that violated a person’s common law property rights;(ii) undermines the Fourth Amendment’s warrantrequirement, having opened the door to general searcheswithout probable cause, such as GPS monitoring; and(iii) weakens the Fifth Amendment’s privilege against self-incrimination. Moreover, the Hayden approach to theFourth Amendment invites open-ended judicial balancing oflaw enforcement interests against individual liberty inderogation of the sovereignty of the people.

ARGUMENT

I. THE GOVERNMENT’S PETITION FOR A WRIT OFCERTIORARI SHOULD BE GRANTED TORESOLVE THE SPLIT AMONG THE CIRCUITS BYRESTORING THE FOURTH AMENDMENT TO ITSORIGINAL TEXT AND PURPOSE.

These amici curiae file this brief in support of the

3

Government’s Petition for a Writ of Certiorari, but reject theGovernment’s position that the covert installation of aglobal positioning system (“GPS”) on an American citizen’sautomobile is not subject to the Fourth Amendment. Theseamici believe that the Government’s position is erroneous,but not because such installation in this case violateddefendant’s “reasonable expectation of privacy,” as held bythe Circuit Court of Appeals below.

Rather, the petition should be granted because this andother recent cases involving GPS tracking devicesdemonstrate the complete inadequacy of current FourthAmendment precedent to protect the inviolate “right of thepeople to be secure in their persons, houses, papers, andeffects, against unreasonable searches and seizures....”Although there exists a significant conflict among thecircuits regarding these GPS tracking devices which mustbe resolved, none of the circuits have based their opinion ona textual analysis of the Fourth Amendment, relyinginstead on Supreme Court decisions which have divergedfrom the constitutional text for over 40 years. As such, thiscase presents to this Court a historic opportunity toreconsider the rationale for its current Fourth Amendmentjurisprudence based upon reasonable privacy expectations,and to restore its earlier Fourth Amendment jurisprudencebased upon protecting both the sanctity of private propertyand the civil sovereignty of the people. Compare Warden v.Hayden, 387 U.S. 294 (1967) and Katz v. United States, 389U.S. 347 (1967) with Boyd v. United States, 116 U.S. 616(1886) and Gouled v. United States, 255 U.S. 298 (1921).

The Government’s petition for certiorari is based uponwhat it views to be “confusing or inconsistent case law withrespect to GPS tracking or other means of acquiring or

4

2 According to the Government, the rule laid down by the Court ofAppeals below would: (a) “stifle the ability of law enforcement agentsto follow leads at the beginning stages of an investigation”; (b) “provideno guidance to law enforcement officers about when a warrant isrequired before placing a GPS device on a vehicle”; and (c) “call intoquestion the legality of various investigative techniques used to gatherpublic information.” Pet., p. 24 (emphasis added). Furthermore, theGovernment complains that to require “a warrant before placing a GPSdevice on a vehicle used for a ‘prolonged’ time period, has createduncertainty surrounding the use of an important law enforcementtool.” Id. (emphasis added). Finally, the Government argues that “thecourt of appeals’ legal theory that the aggregation of public informationconstitutes a Fourth Amendment search, even when short periods ofsurveillance would not, has the potential to destabilize FourthAmendment law and to raise questions about a variety of common lawenforcement practices.” Pet., p. 25 (emphasis added).

aggregating data not normally thought of as a search [that]will hamper important law enforcement interests.” Petitionfor Certiorari (“Pet.”), p. 27. However, the Governmentseeks to further erode the Fourth Amendment. Relying onthe premise that the Fourth Amendment protects only“reasonable expectation[s] of privacy,” the Governmenthopes to convince this Court that, unless it is grantedimmunity from Fourth Amendment constraints upon theuse of GPS monitoring, its ability to investigate crimes willbe seriously impaired. See Pet., pp. 24-25. By parading alitany of law enforcement needs,2 the Government seeks toshed any principled constraint imposed on it by the FourthAmendment — hoping to lay the groundwork to persuadejudges in future cases that a defendant’s individualexpectation of privacy is unreasonable when balancedagainst the interest of society to be protected against drug“traffick[ers], terrorist[s], and other crim[inals].” See Pet. p.24.

5

3 See Heller, 554 U.S. at 634.

This Court recently held in District of Columbia v.Heller, 554 U.S. 570 (2008) that “a constitutional guaranteesubject to future judges’ assessments of its usefulness is noconstitutional guarantee at all.” Id., 554 U.S. at 634. Butthe Fourth Amendment’s “reasonable expectation ofprivacy” test increasingly invites just such a judicial“freestanding ‘interest-balancing’ approach,”3 as thelitigation herein demonstrates. Compare Circuit JudgeGinsburg’s analysis of the privacy issue (App. 26a-39a) withthe analyses of Chief Judge Sentelle (App. 45a-49a), CircuitJudge Kavanaugh (App. 45a-52a), and District Court JudgeHuvelle (App. 83a-85a).

To be sure, the Fourth Amendment prohibition isdirected at “unreasonable” searches and seizures, but themeaning of “unreasonable” is contextual and unique —different from the meaning of that word as applied by juriesto contending parties in tort cases, or by judges in suits foran injunction, where competing interests may be properlybalanced ad hoc. Rather, the Fourth Amendment’s meaningof “unreasonable” was designed as an objective, fixed rule togovern the relationship between the Government and itscitizens — a direct product of specific historic eventsinvolving the abusive exercise of government power againstthe liberty and property of individual citizens. See, e.g.,Warden v. Hayden, 387 U.S. 294, 313-21 (1967) (Douglas, J.,dissenting). As the Heller Court has reminded us, “[t]hevery enumeration of the right takes out of the hands ofGovernment — even the Third Branch of Government — thepower to decide on a case-by-case basis whether the right isreally worth insisting upon.” Heller, 554 U.S. at 634. In

6

short, there is no judicial balancing to be done — as theFourth Amendment, like the Second and the First, “is thevery product of an interest-balancing by the people.” See id.

Even though the Court of Appeals below reached theright result — exclusion of the data produced by theGovernment-installed GPS system — it did not do so for theright reason. Instead, it issued a ruling based upon asubjective judicial assessment of the reasonable expectationof privacy of the Respondent in this case, thereby creatingyet another Fourth Amendment conflict among the circuits,such a conflict can only be definitively resolved by a returnto the original text and purpose of the Fourth Amendment,as demonstrated infra.

II. THE ORIGINAL OBJECTIVE, PROPERTY-BASEDTEXT AND PURPOSE OF THE FOURTHAMENDMENT SHOULD BE REVIVED ANDAPPLIED.

In Heller, this Court found that “[t]he first salientfeature of the operative clause [of the Second Amendment]is that it codifies a ‘right of the people.’” Id., 554 U.S. at579. And as the Heller Court further observed, this “rightof the people” is a term of art, referring to “all members ofthe political community.” Id. 554 U.S. at 580 (emphasisadded). As a right of the people in their political capacity,the Court concluded that the Second Amendment wascalculated to preserve the right of self-defense so that thepeople would not be dependent solely upon the Governmentto protect their lives, their liberties and their property.Indeed, the right was secured so that the people would notbe defenseless if their Government became tyrannical. Seeid., 554 U.S. at 591-600.

7

Like the Second and First Amendments, the FourthAmendment secures a “right of the people.” Id., 554 U.S. at579. This right was specifically designed to secure thepeople from “unwarrantable intrusion[s] of executive agentsof [the Government] into the houses and among the privatepapers of individuals, in order to obtain evidence ofpolitical offences either committed or designed.” T. Cooley,A Treatise on Constitutional Limitations, p. 366 (5th ed.,Little, Brown: 1883) (emphasis added). The Amendmentalso was designed to stop the exercise of “prerogative at theexpense of liberty,” by means of “roving commission[s]” or“general warrants” threatening “the person and property ofevery man.” Id., at 366, n.1. Thus, the Fourth Amendmentreads not only that “the people ... be secure in their persons,houses, papers and effects against unreasonable searchesand seizures,” but that “no warrants shall issue but onprobable cause, supported by oath or affirmation, andparticularly describing the place to be searched and thepersons or things to be seized.”

A. Two Rights, Not One.

The plain text of the Fourth Amendment protects twodistinct rights:

(i) the right of the people to be secure in theirpersons, houses, papers, and effects, fromunreasonable searches and seizures; and

(ii) the right not to be subject to a general search orseizure, but only to one particularly describing the place,person, or thing to be searched and seized.

Such would not have been the case under the initialproposal submitted by James Madison of Virginia in theHouse of Representatives. That precursor of the Fourth

8

4 N.B. Lasson, The History and Development of the Fourth Amendmentto the United States Constitution, p. 103 (Johns Hopkins Press: 1937).

5 Id.

Amendment protected only the second right, not the first.It read:

The rights of the people to be secured in theirpersons, their houses, their papers, and theirother property, from all unreasonable searchesand seizures, shall not be violated by warrantsissued without probable cause, supported byoath or affirmation, or not particularlydescribing the places to be searched, or thepersons or things to be seized. [See Sources ofOur Liberties, p. 423 (R. Perry & J. Cooper,eds., ABA Found.: 1978.]

But Madison’s was a “one-barrelled [proposal] directedapparently only to the essentials of a valid warrant.”4 Hisproposed text was later amended so as to “contain twoclauses”5:

The right of the people to be secure in theirpersons, houses, papers, and effects fromunreasonable searches and seizures shall notbe violated, and no warrants shall issue ,but upon probable cause, supported by oath oraffirmation, and particularly describing theplace to be searched, and the person or thingto be seized. [Emphasis added.]

By separating the two clauses:

9

The general right of security fromunreasonable search and seizure was given asanction of its own and the amendment thusintentionally given a broader scope. That theprohibition against ‘unreasonable searches’was intended, accordingly, to cover somethingother than the form of the warrant is aquestion no longer left to implication to bederived from the phraseology of theAmendment. [Id.]

B. The Property Right Is Primary.

In the seminal case of Boyd v. United States, 116 U.S.616 (1886), a statute authorized a court, on motion of theprosecuting attorney, to issue a subpoena requiring adefendant to produce books, invoices, and papers in aforfeiture proceeding against goods that had been allegedlyimported without payment of the requisite duties. Inopposition to this subpoena, Boyd interposed the FourthAmendment. According to the Court, the threshold questionwas whether “a compulsory production of a man’s privatepapers, to be used in evidence against him in a proceedingto forfeit his property for alleged fraud against the revenuelaws [is] an ‘unreasonable search and seizure’ within themeaning of the Fourth Amendment of the Constitution.” Id.at 622. In response, the Court stated:

The search for and seizure of stolen orforfeited goods or goods liable to duties andconcealed to avoid payment thereof are totallydifferent things from a search for andseizure of a man’s private books and papersfor the purpose of obtaining information

10

therein contained or of using them asevidence against him. The two thingsdiffer toto coelo. In the one case, theGovernment is entitled to the possessionof the property; in the other it is not. [Id.at 623 (emphasis added.]

The Boyd Court instructed that the Fourth Amendment’sfirst freedom — from unreasonable searches and seizures —protected one’s property from a Government search andseizure unless the Government demonstrated a superiorproperty right to the thing to be seized, no matter howparticularized the search and seizure, or how well supportedby probable cause, even if authorized by a disinterestedmagistrate. See id. at 623-29. See also Hayden, 387 U.S. at318-19 (Douglas, J., dissenting). In conclusion, the BoydCourt stated:

The principles laid down in this opinion affectthe very essence of constitutional liberty andsecurity.... [T]hey apply to all invasions, onthe part of the Government and its employees,of the sanctity of a man’s home and theprivacies of life. It is not the breaking of hisdoors and the rummaging of his drawers thatconstitutes the essence of the offense; but it isthe invasion of his indefeasible right ofpersonal security, personal liberty, andprivate property, where that right has neverbeen forfeited by his conviction of some publicoffense. [Id. at 630 (emphasis added).]

11

6 Hayden, 387 U.S. at 319 (Douglas, J. dissenting).

C. The Warrant Requirement Is Secondary.

The Boyd decision spawned what later became known asthe “mere evidence” rule, namely, that search warrants maybe:

resorted to only when a primary right tosearch and seizure may be found in theinterest which the public or the complainantmay have in the property to be seized, or inthe right to the possession of it, or when avalid exercise of the police power renderspossession of the property by the accusedunlawful, and provides that it may be taken.[Gouled v. United States, 255 U.S. 298, 309(1921) (emphasis added).]

Thus, Gouled, in turn, brought the Boyd “doctrine” into its“full flowering ... where an opinion was written by JusticeClarke for a unanimous Court that included both JusticeHolmes and Justice Brandeis”6:

The prosecution was for defrauding theGovernment under procurement contracts.Documents were taken from the defendant’sbusiness under a search warrant and used atthe trial as evidence against him. Stolen orforged papers could be so seized....; socould lottery tickets; so couldcontraband; so could property in whichthe public had an interest.... But the

12

papers or documents fell in none of thosecategories and the Court held that eventhough they had been taken under a warrant,they were inadmissible at trial as not even awarrant, though otherwise proper andregular, could be used ‘for the purpose ofmaking search to secure evidence’ of acrime. [Id., 387 U.S. at 319 (Douglas, J.,dissenting) (emphasis added).]

III. THE CURRENT AD HOC, SUBJECTIVE,PRIVACY-BASED VIEW OF THE FOURTHAMENDMENT SHOULD BE REJECTED.

A. Privacy Interest Substituted for PropertyRights.

Forty-six years after Gouled, however, this Courtabandoned its well-established Fourth Amendmentjurisprudence based upon “property rights” in favor of onerooted in an emerging right of “privacy.” See Warden v.Hayden, 387 U.S. 294 (1967). Claiming dissatisfaction withthe “fictional and procedural barriers rest[ing] on propertyconcepts,” Justice William J. Brennan — writing for a baremajority of five justices — jettisoned the time-honored rulethat a search for “mere evidence” was per se “unreasonable.”Id. at 295-97. Justice Brennan claimed that the distinctionbetween (i) “mere evidence” and (ii) “instrumentalities [ofcrime], fruits [of crime] and contraband” was “based onpremises no longer accepted as rules governing theapplication of the Fourth Amendment.” Id. at 300-01(emphasis added). Discarding the notion that the FourthAmendment requires the Government to demonstrate that

13

7 Id. at 303-04.

8 Id. at 302.

9 Id. at 306.

10 Id. at 309.

11 Id. at 312 (Fortas, J., concurring).

12 Id. (Fortas, J., concurring) (emphasis added).

it has a “superior property interest”7 in the thing to beseized, Justice Brennan promised that his new privacyrationale would free the Fourth Amendment from“irrational,”8 “discredited,”9 and “confus[ing]”10 decisions ofthe past, and thereby would provide for a more meaningfulprotection of “the principal object of the Fourth Amendment[— ] the protection of privacy rather than property.” Id. at304.

Concurring in the result, but not in the reasoning,Justice Fortas (joined by Chief Justice Earl Warren) statedthat he could “cannot join in the majority’s broad — and ...totally unnecessary — repudiation of the so-called ‘mereevidence’ rule.” Id. at 310 (Fortas, J., concurring). Restinghis concurrence on the time-honored “‘hot pursuit’ exceptionto the warrant requirement,”11 Justice Fortas sought toavoid what he called “an enormous and dangerous holein the Fourth Amendment”12:

[O]pposition to general searches is afundamental of our heritage and of the historyof Anglo-Saxon legal principles. Suchsearches, pursuant to “writs of assistance,”

14

13 See Pet., p. 3.

were one of the matters over which theAmerican Revolution was fought. The verypurpose of the Fourth Amendment was tooutlaw such searches, which the Court todaysanctions. I fear that in gratuitouslystriking down the “mere evidence” rule,which distinguished members of this Courthave acknowledged as essential to enforce theFourth Amendment’s prohibition againstgeneral searches, the Court needlesslydestroys, root and branch, a basic part ofliberty’s heritage. [Id. at 312 (Fortas, J.,concurring) (emphasis added).]

B. The Fourth Amendment Property PrincipleErased.

Had the Hayden Court not thrown out the “mereevidence” rule, there would be no doubt that no warrantcould lawfully have been issued to “covertly install andmonitor a global positioning system (GPS) tracking deviceon Respondent’s Jeep Grand Cherokee.”13 According to theGovernment, the sole purpose of such an installation was togather evidence of the movement of the vehicle. Id., Pet.,pp. 3-5. Indeed, by introducing the data obtained by meansof such a device, the Government was, in effect, forciblycollecting information about Respondent’s movements forthe sole purpose of using such data as evidence against him.Although some of the movements of the Respondent’s jeepover a month-long surveillance period may have been seenby third parties, including Government investigating

15

agents, the very purpose of the GPS tracking system was tochronicle only that which the Respondent himself wouldknow — all of the Jeep’s movements over that same period.By extracting that information by the GPS device, theGovernment, in purpose, and in effect, was compelling thedefendant to testify against himself.

In Boyd, the Court “noticed the intimate relationbetween” the Fourth Amendment and the prohibitionagainst compelled self-incrimination in the Fifth:

For the ‘unreasonable searches and seizures’condemned in the Fourth Amendment arealmost always made for the purpose ofcompelling a man to give evidenceagainst himself. [Boyd, 116 U.S. at 633(emphasis added).]

Thus, the Boyd Court’s “mere evidence” rule protectedthe right against self-incrimination because, under thatrule, search warrants “may not be used as a means ofgaining access to a man’s house or office and papers solelyfor the purpose of making a search to secure evidence to beused against him in a criminal or penal proceeding.”Gouled, 255 U.S. at 309.

In explaining the property principle undergirding thefirst freedom, as protected by the Fourth Amendment, theBoyd Court warned that, although the evidence seized inthat case complied with the warrant requirement:

[I]llegitimate and unconstitutionalpractices get their first footing ... by silentapproaches and slight deviations from

16

legal modes of procedure. This can only beobviated by adhering to the rule thatconstitutional provisions for the security ofperson and property should be liberallyconstrued. A close and literal constructiondeprives them of half their efficacy and leadsto a gradual depreciation of the right.... It isthe duty of courts to be watchful for theconstitutional rights of the citizen, andagainst any stealthy encroachmentsthereon. Their motto should be obstaprincipiis. [Id., 116 U.S. at 635 (emphasisadded).]

Ignoring this Court’s admonition, Justice Brennanfrankly admitted that, by erasing the property protectionfrom the Fourth Amendment, his newly-minted privacy-based Hayden rule “does enlarge the area ofpermissible searches.” Hayden, 387 U.S. at 309(emphasis added). He apparently assumed that the newly-permitted intrusions for “mere evidence” would be checkedby the warrant, probable cause, and magistraterequirements of the Amendment’s second phrase. See id.However, as the instant case dramatically illustrates,Justice Brennan’s Fourth Amendment revolution hasactually undermined the warrant, probable cause, andmagistrate requirements of the Amendment.

C. The Warrant Requirement Undermined.

Having abandoned the “mere evidence” rule for the“reasonable expectation of privacy” guideline, the HaydenCourt opened the door not only to a search warrantauthorizing the installation of a GPS device, but to the

17

14 If the Government has the right to place a GPS device on a citizen'sautomobile to gather movement data because no citizen has anyreasonable expectation of privacy, why should not a citizen have areciprocal right to place a GPS on a government official’s car? Surely thegovernment official has no different expectation of privacy. No doubt,however, if any citizen were to be so bold, the Government would bequick to indict him, inter alia, for trespassing on government property.

implantation of such a device without a search warranton the theory that there is no expectation of privacy asto a person’s movements on a public highway.14 See Pet., p.10. Under this view, if there were no such privacyexpectation, then the Fourth Amendment would cease toapply altogether, the Government having no need forprobable cause or even reasonable suspicion to place atracking device on any automobile.

Just as Justice Fortas forecast, Justice Brennan’sprivacy rationale has undermined the “Fourth Amendment’sprohibition against general searches.” See Warden v.Hayden, at 312 (Fortas, J., concurring). In its Petition, theGovernment has: (a) informed this Court that “federal lawenforcement agencies frequently use tracking devices earlyin investigations before suspicions have ripened intoprobable cause;” (b) argued that applying the FourthAmendment would “prevent[] law enforcement officials fromusing GPS devices in an effort to gather information toestablish probable cause;” and (c) asserted that, as aconsequence, “the government’s ability to investigate leadsand tips,” will be “seriously impede[d].” Pet., p. 24 (italicsoriginal, bold added). In short, the Government demandsthis Court sanction its unbridled discretion to searchsuspected driving activities, seizing data as to themovement of vehicles on the public highways, in order to

18

15 The Government has attempted to reassure the Court that it need notbe concerned about its use of GPS without reasonable suspicion in thiscase, since it was not in this particular case part of a “‘dragnet’surveillance ... conducted without any articulable suspicion” — theconstitutionality of which law enforcement technique will need to beresolved in some future decision. See Pet., p. 15 (emphasis added). But if an individual driver has no reasonable expectation of privacywhile driving his automobile on a public road, why would many driverscumulatively have such a privacy expectation?

gather enough information to establish probable cause toinstitute criminal proceedings. The GPS technology, then,serves the Government in the same way as the discreditedgeneral warrant — legitimizing intrusions upon propertywithout first having to demonstrate before a judicialmagistrate that it has “probable cause.” Indeed, if there isno reasonable expectation of privacy, as the Governmenthas argued, then the warrant requirement would not evencome into play, much less would the Government berequired to have “probable cause,” or even “reasonablesuspicion” to install a GPS on one's automobile.15

As the Boyd Court recalled, the Fourth Amendment’sprohibition against “unreasonable searches and seizures”was the direct product of the government practice “ofissuing writs of assistance to the revenue officers,empowering them, in their discretion, to search suchsuspected places for smuggled goods, which James Otispronounced ‘the worst instrument of arbitrary power, themost destructive of English liberty and fundamentalprinciples of law, that ever was found in an English lawbook.” Boyd, 116 U.S. at 625 (emphasis added). In hisclassic Treatise on Constitutional Limitations, renownedconstitutional scholar, Thomas Cooley, ranked the FourthAmendment guarantee of “citizen immunity in his home

19

against the prying eyes of the Government, and protectionin person, property, and papers against even the process oflaw” next in importance to the constitutional ban onpersonal slavery. T. Cooley, A Treatise on ConstitutionalLimitations, p. 365 (5th ed., Little, Brown: 1883) (emphasisadded).

While one’s personal automobile has not yet achieved theexalted status of the home, the Fourth Amendmentpronounces that “persons,” “houses,” “papers,” and “effects”are equally secured from unreasonable searches andseizures. Each is a right of the people, and best protected byenduring, unchanging common law rules of privateproperty, not by modern evolving chameleons invented byjudges.

IV. THE FOURTH AMENDMENT PROTECTS NOTONLY AGAINST THE SEIZURE OF DATA BYGPS DEVICES, BUT THE VERY USE OF SUCHDEVICES.

According to the laws of nature, “every Man has aproperty in his own person.” J. Locke, The Second Treatiseon Civil Government, Chap. V, sec., 27 (1690). For theGovernment to claim a right to stalk any person suspectedto be engaged in criminal activity is tantamount to a claimthat a concerned father might make to keep track of a youngdaughter simply to make sure that she behaves. In theAmerican constitutional republic, founded by “We, thepeople,” the Government’s relationship with its citizens wasnever intended to be upended by this kind of statepaternalism.

The Government attempts to excuse its covert GPS

20

16 See Luke 22:25.

surveillance of respondent’s automobile because “the GPSdata introduced at trial related only to the movements of theJeep on public roads.” Pet., p. 5. But once installed, theGPS gathered data while the vehicle was on privateproperty. Id. Under the privacy rationale of the FourthAmendment, all of the judges below agreed that theevidence gathered while the vehicle was on private propertyshould be suppressed. They differed in opinion only on thequestion whether the evidence gathered while the vehiclewas on public roads should be admitted. Yet, the intrusionon respondent’s person was the same. The Government wassurreptitiously tracking respondent’s vehicular movementsas if the Government has an inherent right to gather“immense amount[s] of information about a person’s privatelife” — whether it be by “use of pen registers, repeated trashpulls, aggregation of financial data, [or] prolonged visualsurveillance” — limited only by whatever technology andfunds were at the Government’s disposal in its absoluteautonomous discretion. See Pet., pp. 24-26.

Unlike other nations in which the governing officials areLords and Benefactors,16 under the United StatesConstitution, the federal Government is the servant of asovereign people. The Fourth Amendment, as originallydesigned and purposed, was to ensure that the Governmenthonored that relationship, preserving the right of privateproperty as the enduring barrier against a totalitarianState. As Professor Cooley so memorably wrote:

The maxim that ‘every man’s house is his

21

17 This “maxim” may now be inoperative in Indiana where, last week,the State Supreme Court rejected the common law rule, dating back tothe 1215 Magna Carta, that a home owner has a right to resist anunlawful police entry on the ground that such a right is “against publicpolicy and incompatible with modern Fourth Amendmentjurisprudence.” See Barnes v. Indiana, Sup. Ct. No. 82S05-1007-CR-343,2011 Ind. LEXIS 353, p. 3.

castle,’17 is made a part of our constitutionallaw in the clauses prohibiting unreasonablesearches and seizures, and has always beenlooked upon as of high value to the citizen.[Cooley’s Treatise at p. 365 (footnote added).]

And, the Amendment’s express language stretches beyondone’s home, to one’s person, papers, and effects — includingone’s automobile — each of which is protected by thecommon law of private property. The prevailing FourthAmendment jurisprudence based upon the malleable“reasonable expectation of privacy” is unworthy of this greatliberty.

V. THE FOURTH AMENDMENT PROTECTS THEPEOPLE FROM TYRANNY.

These amici curiae represent organizations primarilyconcerned with First and Second Amendment matters.They are therefore aware of the history of the primary rolethat government searches and seizures have served in theenforcement of laws aimed at political dissenters. Indeed,it would be a “misread[ing] [of] history [to] relat[e] theFourth Amendment primarily for searches for evidence to beused in criminal prosecutions.” See Frank v. Maryland, 359U.S. 360, 376 (1959) (Douglas, J., dissenting). Rather, the

22

Fourth Amendment was designed to protect the politicaland religious nonconformist from the use of generalwarrants to suppress the freedoms of religion and the press.See id., 359 U.S. at 376-77 (Douglass, J., dissenting).Indeed, the general warrant was a primary tool employed bythe Star Chamber not only in the area of trade andcommerce, but in political and religious matters as well. SeeJ. Scarboro & J. White, Constitutional Criminal Procedure,pp. 23-24 (Foundation Press:1977).

Even after the Star Chamber was abolished in 1648, theEnglish crown attempted to suppress political dissent,utilizing the general warrant to confiscate whole libraries ofauthors of “seditious papers.” Such practices endured wellinto the 18th Century when Lord Camden issued his opinionin Entick v. Carrington, 19 How. St. Trials 1030 (1765),establishing both the property principle and the warrantrequirement of the Fourth Amendment, as articulated andembraced in Boyd. See id., 116 U.S. at 625-30.

While this case involves a matter of quite a differentgenre, the Fourth Amendment jurisprudence applied hereimpacts upon the increasingly intrusive administrativeenforcement of regulations governing various aspects ofmodern life, including, for example, air travel. Indeed, inthe administrative state that the United States increasinglyresembles, the Fourth Amendment’s warrant and probablecause standards have already been weakened in such casesas Camara v. Municipal Court, 387 U.S. 523 (1967)(authorizing warrants to be issued without probable causeto inspect homes by city housing inspectors) and UnitedStates v. Biswell, 406 U.S. 311 (1972) (upholding a firearmsstatute authorizing warrantless searches of FederalFirearms Licensees). Such diminutions in liberty are

23

inevitable if Fourth Amendment rights are protected by atest that turns on current societal privacy expectations,rather than on historic and enduring rights of privateproperty. As Justice Douglas so wisely observed: “Power isa heady thing; and history shows that the police acting ontheir own cannot be trusted.” See Frank, 359 U.S. at 380(Douglas, J., dissenting).

While even rules based on the right to private propertyare no guarantee of the people’s liberty, this was theapproach chosen by the founders as the best way that thepeople can protect themselves from a Government that itfeared could someday seize the same type of tyrannicalpowers claimed by King George. The founders probablycould not have anticipated how far we have fallen, withbureaucrats enforcing unnumbered incomprehensibleregulations, physically patting down men, women andchildren before being allowed the privilege to travel, andeven prying into how the people eat, drink, speak, andmaintain their physical health. As the Government extendsits dominion over historically sacrosanct areas of individualdiscretion, one’s “reasonable expectation of privacy”correspondingly shrinks. Although all constitutionalprovisions should be understood by their text, and authorialintent, the modern method of determining its meaning fromwhat people presumably now think or expect, renders clearterminology meaningless and the Constitution powerless.

With an emasculated Fourth Amendment, why wouldthe Government refrain from generalized stealthsurveillance? Undeterred by this Court’s rulings in caseslike United States v. Knotts, 460 U.S. 276 (1983), theGovernment operates under no Fourth Amendmentdisincentive from using virtually any sophisticated

24

surveillance device, yet undisclosed or unimagined. Suchtechnology may be deployed — without a warrant — againstanyone as long as it gathers at least some evidence wherethere is no “privacy expectation.” As a result, only a slightfraction of one’s waking hours may be afforded protectionfrom these all-seeing eyes of Government. The judicialabandonment of the mere evidence rule fosters thismovement toward warrantless surveillance. Suchgovernment surveillance is enough to make the mostdevoted Orwellian swell with pride. Most assuredly,however, it would have fomented an insurrection byAmerica’s founders.

CONCLUSION

The Hayden opinion does not advance the cause ofliberty. Rather, its privacy expectation approach to theFourth Amendment has created an inverse relationshipbetween the growth of Government and the protections ofthat Amendment. Bluntly put, if Hayden is left standing, itencourages tyranny, not freedom. Only by embracing thefoundational principles of private property enshrined in theFourth Amendment will the people’s liberties be restored.

For the reasons stated, this Court should grant theGovernment’s petition for a writ of certiorari, and invite theparties to submit briefs and argument addressing thequestion whether Warden v. Hayden should be overruled,and the textually-faithful rules of Boyd and Gouled berestored.

25

Respectfully submitted,

JOSEPH W. MILLER HERBERT W. TITUS*LAW OFFICES OF JOSEPH WILLIAM J. OLSON MILLER, LLC. JOHN S. MILESP.O. Box 83440 JEREMIAH L. MORGANFairbanks, AK 99708 WILLIAM J. OLSON, P.C.(907) 451-8559 370 Maple Avenue West

Attorney for Amicus Restoring Suite 4Liberty Action Committee Vienna, VA 22180-5615

wjo@mindspring.com(703) 356-5070

GARY G. KREEP Attorneys for Amici CuriaeU.S. JUSTICE FOUNDATION

932 D StreetSuite 2Ramona, CA 92065(760) 788-6624

Attorney for AmicusU.S. Justice Foundation

*Counsel of RecordMay 16, 2011