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Litigating the Fourth Amendment After Jones
By Jim Harper
In United States v. Jones, a unanimous Supreme Court held that government agents could not attach a GPS device to a criminal suspect’s vehicle and monitor its movements without a warrant. This was a clear victory for privacy and the Fourth Amendment, but as guidance for lower courts and litigators, it is pretty unclear. The Court was divided over rationale.
Early returns suggest that lower courts will now try both forms of Fourth Amendment analysis: the familiar “reasonable expectation of privacy” test from Katz v. United States and the property-based test that Justice Scalia revived in his Jones majority opinion. There is no time like the present to strengthen Fourth Amendment challenges by bringing information to court that will support either argument.
Understanding the physics and law of privacy protection can strengthen an attorney’s arguments under either theory of the Fourth Amendment. People protect privacy by maintaining physical and legal barriers around information
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