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 THECONSTITUTION, RESTORING LIBERTY

ACTION COMMITTEE, U.S. JUSTICEFOUNDATION, CONSERVATIVE LEGAL

DEFENSE AND EDUCATION FUND, FREESPEECH COALITION, INC., FREE SPEECHDEFENSE AND EDUCATION FUND, INC.,

DOWNSIZEDC.ORG, DOWNSIZE DCFOUNDATION, AND LINCOLN INSTITUTE

FOR RESEARCH AND EDUCATION INSUPPORT 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., # 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

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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 RESOLVETHE SPLIT AMONG THE CIRCUITS BY RESTORINGTHE FOURTH AMENDMENT TO ITS ORIGINALTEXT AND PURPOSE . . . . . . . . . . . . . . . . . . . . . . . 3

II. THE ORIGINAL OBJECTIVE, PROPERTY-BASEDTEXT AND PURPOSE OF THE FOURTHAMENDMENT SHOULD BE REVIVED AND APPLIED 7

A. Two Rights, Not One . . . . . . . . . . . . . . . . . . 8

B. The Property Right Is Primary . . . . . . . . . 10

C. The Warrant Requirement Is Secondary . 12

III. THE CURRENT AD HOC, SUBJECTIVE, PRIVACY-BASED VIEW OF THE FOURTH AMENDMENTSHOULD BE REJECTED . . . . . . . . . . . . . . . . . . . 13

A. Privacy Interest Substituted for PropertyRights . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

B. The Fourth Amendment Property PrincipleErased . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 15

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C. The Warrant Requirement Undermined . . 18

IV. THE FOURTH AMENDMENT PROTECTS NOTONLY AGAINST THE SEIZURE OF DATA BY GPSDEVICES, BUT THE VERY USE OF SUCHDEVICES . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

V. THE FOURTH AMENDMENT PROTECTS THEPEOPLE FROM TYRANNY . . . . . . . . . . . . . . . . . . 23

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

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TABLE OF AUTHORITIES

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

U.S. CONSTITUTIONAmendment IV . . . . . . . . . . . . . . . . . . . . . . 1, passimAmendment V . . . . . . . . . . . . . . . . . . . . . . . . . . 2, 16

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

2011 Ind. LEXIS 353 . . . . . . . . . . . . . . . . . . . 23Boyd v. United States, 116 U.S. 616

(1886) . . . . . . . . . . . . . . . . . . . . . . . . . . 2, passimCamara v. Municipal Court, 387 U.S. 523 (1967) 24District of Columbia v. Heller, 554 U.S. 570

(2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5, 6, 7Entick v. Carrington, 19 How. St. Trials 1030

(1765) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 24Frank v. Maryland, 359 U.S. 360 (1959) . 23, 24, 25Gouled v. United States, 255 U.S. 298

(1921) . . . . . . . . . . . . . . . . . . . . . . . . . . 4, passimKatz v. United States, 389 U.S. 347 (1967) . . . . . . 4Warden v. Hayden, 387 U.S. 294 (1967) . . 2, passimUnited States v. Biswell, 406 U.S. 311 (1972) . . . 25United States v. Knotts, 460 U.S. 276 (1983) . . . 26

MISCELLANEOUST. Cooley, A Treatise on Constitutional Limitations,

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

Fourth Amendment to the United StatesConstitution (Johns Hopkins Press 1937) . 9, 10

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J. Locke, The Second Treatise on Civil Government,(1690) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21

J. Scarboro & J. White, Constitutional CriminalProcedure (Foundation Press:1977) . . . . . . . . 24

Sources of Our Liberties,(R. Perry & J. Cooper, eds.,(ABA Found.: 1978) . . . . . . . . . . . . . . . . . . . 8, 9

1 It is hereby certified that the parties have consented to the filingof this brief; that counsel of record for all parties received noticeat least 10 days prior to the due date of the intention to file thisamicus curiae brief; and that no counsel for a party authored thisbrief in whole or in part, and no person other than amici curiae,their members, or their counsel made a monetary contribution toits preparation or submission.

INTEREST OF THE AMICI CURIAE1

The amici, Gun Owners of America, Inc., GunOwners Foundation, Institute on the Constitution,Restoring Liberty Action Committee, U.S. JusticeFoundation, Conservative Legal Defense andEducation Fund, Free Speech Coalition, Inc., FreeSpeech Defense and Education Fund, Inc.,DownsizeDC.org, and Downsize DC Foundation, theLincoln Institute are educational organizationsinterested in the proper interpretation of the U.S.Constitution, most of whom have filed numerousamicus curiae briefs in prior litigation, including casesin this Court.

SUMMARY OF ARGUMENT

The Government’s petition should be granted, butnot for the reasons stated therein. Instead, thepetition should be granted to resolve a split among thecircuits on the Fourth Amendment’s relevance andapplication to covert installations of global positioningsystems (“GPS”) on an American citizen’s automobileby restoring the Fourth Amendment to its original textand purpose. The conflict among the circuits over theconstitutionality of the installation of GPS is a productof this Court’s rejection of a property-based FourthAmendment jurisprudence — embraced initially by a

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unanimous Court in Boyd v. United States, 116 U.S.616 (1886), and adhered to for over 80 years —substituting therefor a new rationale based upon anemerging right of privacy by a vote of only five justicesin Warden v. Hayden, 387 U.S. 294 (1967).

Relying on the Hayden rationale — that theGovernment may search and seize any person, place orthing if there is no reasonable expectation of privacy —the Government contends that the installation of aGPS on an automobile to gather information of thevehicle’s movement on a public road was not evengoverned by the Fourth Amendment. Under the Boydrule, the GPS installation would have been barred bythe “mere evidence” rule, the Government having noproperty interest in the GPS data sought, namely, theautomobile’s movements. By rejecting the “mereevidence” rule in favor of a “privacy” rationale, Hayden(i) disregards the textual meaning of the FourthAmendment’s absolute prohibition against“unreasonable searches and seizures” that violated aperson’s common law property rights; (ii) underminesthe Fourth Amendment’s warrant requirement, havingopened the door to general searches without probablecause, such as GPS monitoring; and (iii) weakens theFifth Amendment’s privilege against self-incrimination. Moreover, the Hayden approach to theFourth Amendment invites open-ended judicialbalancing of law enforcement interests againstindividual liberty in derogation of the sovereignty ofthe people.

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ARGUMENT

I. THE GOVERNMENT’S PETITION FOR AWRIT OF CERTIORARI SHOULD BEGRANTED TO RESOLVE THE SPLIT AMONGTHE CIRCUITS BY RESTORING THEFOURTH AMENDMENT TO ITS ORIGINALTEXT AND PURPOSE.

These amici curiae file this brief in support of theGovernment’s Petition for a Writ of Certiorari, butreject the Government’s position that the covertinstallation of a global positioning system (“GPS”) onan American citizen’s automobile is not subject to theFourth Amendment. These amici believe that theGovernment’s position is erroneous, but not becausesuch installation in this case violated defendant’s“reasonable expectation of privacy,” as held by theCircuit Court of Appeals below.

Rather, the petition should be granted because thisand other recent cases involving GPS tracking devicesdemonstrate the complete inadequacy of currentFourth Amendment precedent to protect the inviolate“right of the people to be secure in their persons,houses, papers, and effects, against unreasonablesearches and seizures....” Although there exists asignificant conflict among the circuits regarding theseGPS tracking devices which must be resolved, none ofthe circuits have based their opinion on a textualanalysis of the Fourth Amendment, relying instead onSupreme Court decisions which have diverged fromthe constitutional text for over 40 years. As such, thiscase presents to this Court a historic opportunity to

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2 According to the Government, the rule laid down by the Courtof Appeals below would: (a) “stifle the ability of law enforcementagents to follow leads at the beginning stages of an investigation”;(b) “provide no guidance to law enforcement officers aboutwhen a warrant is required before placing a GPS device on avehicle”; and (c) “call into question the legality of variousinvestigative techniques used to gather public information.” Pet.,p. 24 (emphasis added). Furthermore, the Government complains

reconsider the rationale for its current FourthAmendment jurisprudence based upon reasonableprivacy expectations, and to restore its earlier FourthAmendment jurisprudence based upon protecting boththe sanctity of private property and the civilsovereignty of the people. Compare Warden v.Hayden, 387 U.S. 294 (1967) and Katz v. UnitedStates, 389 U.S. 347 (1967) with Boyd v. UnitedStates, 116 U.S. 616 (1886) and Gouled v. UnitedStates, 255 U.S. 298 (1921).

The Government’s petition for certiorari is basedupon what it views to be “confusing or inconsistentcase law with respect to GPS tracking or other meansof acquiring or aggregating data not normally thoughtof as a search [that] will hamper important lawenforcement interests.” Petition for Certiorari (“Pet.”),p. 27. However, the Government seeks to furthererode the Fourth Amendment. Relying on the premisethat the Fourth Amendment protects only “reasonableexpectation[s] of privacy,” the Government hopes toconvince this Court that, unless it is granted immunityfrom Fourth Amendment constraints upon the use ofGPS monitoring, its ability to investigate crimes willbe seriously impaired. See Pet., pp. 24-25. Byparading a litany of law enforcement needs,2 the

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that to require “a warrant before placing a GPS device on avehicle used for a ‘prolonged’ time period, has createduncertainty surrounding the use of an important lawenforcement tool.” Id. (emphasis added). Finally, theGovernment argues that “the court of appeals’ legal theory thatthe aggregation of public information constitutes a FourthAmendment search, even when short periods of surveillancewould not, has the potential to destabilize Fourth Amendmentlaw and to raise questions about a variety of common lawenforcement practices.” Pet., p. 25 (emphasis added).

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

Government seeks to shed any principled constraintimposed on it by the Fourth Amendment — hoping tolay the groundwork to persuade judges in future casesthat a defendant’s individual expectation of privacy isunreasonable when balanced against the interest ofsociety to be protected against drug “traffick[ers],terrorist[s], and other crim[inals].” See Pet. p. 24.

This Court recently held in District of Columbia v.Heller, 554 U.S. 570 (2008) that “a constitutionalguarantee subject to future judges’ assessments of itsusefulness is no constitutional guarantee at all.” Id.,554 U.S. at 634. But the Fourth Amendment’s“reasonable expectation of privacy” test increasinglyinvites just such a judicial “freestanding ‘interest-balancing’ approach,”3 as the litigation hereindemonstrates. Compare Circuit Judge Ginsburg’sanalysis of the privacy issue (App. 26a-39a) with theanalyses of Chief Judge Sentelle (App. 45a-49a),Circuit Judge Kavanaugh (App. 45a-52a), and DistrictCourt Judge Huvelle (App. 83a-85a).

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To be sure, the Fourth Amendment prohibition isdirected at “unreasonable” searches and seizures, butthe meaning of “unreasonable” is contextual andunique — different from the meaning of that word asapplied by juries to contending parties in tort cases, orby judges in suits for an injunction, where competinginterests may be properly balanced ad hoc. Rather,the Fourth Amendment’s meaning of “unreasonable”was designed as an objective, fixed rule to govern therelationship between the Government and its citizens— a direct product of specific historic events involvingthe abusive exercise of government power against theliberty 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 hasreminded us, “[t]he very enumeration of the righttakes out of the hands of Government — even theThird Branch of Government — the power to decide ona case-by-case basis whether the right is really worthinsisting upon.” Heller, 554 U.S. at 634. In short,there is no judicial balancing to be done — as theFourth Amendment, like the Second and the First, “isthe very product of an interest-balancing by thepeople.” See id.

Even though the Court of Appeals below reachedthe right result — exclusion of the data produced bythe Government-installed GPS system — it did not doso for the right reason. Instead, it issued a rulingbased upon a subjective judicial assessment of thereasonable expectation of privacy of the Respondent inthis case, thereby creating yet another FourthAmendment conflict among the circuits, such a conflictcan only be definitively resolved by a return to the

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original text and purpose of the Fourth Amendment,as demonstrated infra.

II. THE ORIGINAL OBJECTIVE, PROPERTY-BASED TEXT AND PURPOSE OF THEFOURTH AMENDMENT SHOULD BEREVIVED AND APPLIED.

In Heller, this Court found that “[t]he first salientfeature of the operative clause [of the SecondAmendment] is that it codifies a ‘right of the people.’”Id., 554 U.S. at 579. And as the Heller Court furtherobserved, this “right of the people” is a term of art,referring to “all members of the politicalcommunity.” Id. 554 U.S. at 580 (emphasis added).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 thatthe people would not be dependent solely upon theGovernment to protect their lives, their liberties andtheir property. Indeed, the right was secured so thatthe people would not be defenseless if theirGovernment became tyrannical. See id., 554 U.S. at591-600.

Like the Second and First Amendments, the FourthAmendment secures a “right of the people.” Id., 554U.S. at 579. This right was specifically designed tosecure the people from “unwarrantable intrusion[s] ofexecutive agents of [the Government] into the housesand among the private papers of individuals, in orderto obtain evidence of political offences eithercommitted or designed.” T. Cooley, A Treatise onConstitutional Limitations, p. 366 (5th ed., Little,

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Brown: 1883) (emphasis added). The Amendment alsowas designed to stop the exercise of “prerogative at theexpense of liberty,” by means of “roving commission[s]”or “general warrants” threatening “the person andproperty of every man.” Id., at 366, n.1. Thus, theFourth Amendment reads not only that “the people ...be secure in their persons, houses, papers and effectsagainst unreasonable searches and seizures,” but that“no warrants shall issue but on probable cause,supported by oath or affirmation, and particularlydescribing the place to be searched and the persons orthings to be seized.”

A. Two Rights, Not One.

The plain text of the Fourth Amendment protectstwo distinct 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 generalsearch or seizure, but only to one particularlydescribing the place, person, or thing to be searchedand seized.

Such would not have been the case under the initialproposal submitted by James Madison of Virginia inthe House of Representatives. That precursor of theFourth Amendment protected only the second right,not the first. It read:

The rights of the people to be secured intheir persons, their houses, their papers,and their other property, from all

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4 N.B. Lasson, The History and Development of the FourthAmendment to the United States Constitution, p. 103 (JohnsHopkins Press: 1937).

5 Id.

unreasonable searches and seizures,shall not be violated by warrants issuedwithout probable cause, supported byoath or affirmation, or not particularlydescribing the places to be searched, orthe persons or things to be seized. [SeeSources of Our Liberties, p. 423 (R. Perry& J. Cooper, eds., ABA Found.: 1978.]

But Madison’s was a “one-barrelled [proposal]directed apparently only to the essentials of a validwarrant.”4 His proposed text was later amended so asto “contain two clauses”5:

The right of the people to be secure intheir persons, houses, papers, and effectsfrom unreasonable searches and seizuresshall not be violated, and nowarrants shall issue , but uponprobable cause, supported by oath oraffirmation, and particularly describingthe place to be searched, and the personor thing to be seized. [Emphasis added.]

By separating the two clauses:

The general right of security fromunreasonable search and seizure was

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given a sanction of its own and theamendment thus intentionally given abroader scope. That the prohibitionagainst ‘unreasonable searches’ wasintended, accordingly, to cover somethingother than the form of the warrant is aquestion no longer left to implication tobe derived from the phraseology of theAmendment. [Id.]

B. The Property Right Is Primary.

In the seminal case of Boyd v. United States, 116U.S. 616 (1886), a statute authorized a court, onmotion of the prosecuting attorney, to issue a subpoenarequiring a defendant to produce books, invoices, andpapers in a forfeiture proceeding against goods thathad been allegedly imported without payment of therequisite duties. In opposition to this subpoena, Boydinterposed the Fourth Amendment. According to theCourt, the threshold question was whether “acompulsory production of a man’s private papers, to beused in evidence against him in a proceeding to forfeithis property for alleged fraud against the revenue laws[is] an ‘unreasonable search and seizure’ within themeaning of the Fourth Amendment of theConstitution.” Id. at 622. In response, the Courtstated:

The search for and seizure of stolenor forfeited goods or goods liable toduties and concealed to avoid paymentthereof are totally different thingsfrom a search for and seizure of a

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man’s private books and papers forthe purpose of obtaining informationtherein contained or of using themas evidence against him. The twothings differ toto coelo. In the onecase, the Government is entitled tothe possession of the property; in theother it is not. [Id. at 623 (emphasisadded.]

The Boyd Court instructed that the FourthAmendment’s first freedom — from unreasonablesearches and seizures — protected one’s property froma Government search and seizure unless theGovernment demonstrated a superior propertyright to the thing to be seized, no matter howparticularized the search and seizure, or how wellsupported by probable cause, even if authorized by adisinterested magistrate. See id. at 623-29. See alsoHayden, 387 U.S. at 318-19 (Douglas, J., dissenting).In conclusion, the Boyd Court stated:

The principles laid down in this opinionaffect the very essence of constitutionalliberty and security.... [T]hey apply to allinvasions, on the part of the Governmentand its employees, of the sanctity of aman’s home and the privacies of life. It isnot the breaking of his doors and therummaging of his drawers thatconstitutes the essence of the offense; butit is the invasion of his indefeasibleright of personal security, personalliberty, and private property, where

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

that right has never been forfeited by hisconviction of some public offense. [Id. at630 (emphasis added).]

C. The Warrant Requirement Is Secondary.

The Boyd decision spawned what later becameknown as the “mere evidence” rule, namely, thatsearch warrants may be:

resorted to only when a primary rightto search and seizure may be found in theinterest which the public or thecomplainant may have in the propertyto be seized, or in the right to thepossession of it, or when a valid exerciseof the police power renders possession ofthe property by the accused unlawful,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” intoits “full flowering ... where an opinion was written byJustice Clarke for a unanimous Court that includedboth Justice Holmes and Justice Brandeis”6:

The prosecution was for defrauding theGovernment under procurementcontracts. Documents were taken fromthe defendant’s business under a search

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warrant and used at the trial as evidenceagainst him. Stolen or forged paperscould be so seized....; so could lotterytickets; so could contraband; socould property in which the publichad an interest.... But the papers ordocuments fell in none of those categoriesand the Court held that even though theyhad been taken under a warrant, theywere inadmissible at trial as not even awarrant, though otherwise properand regular, could be used ‘for thepurpose of making search to secureevidence’ of a crime. [Id., 387 U.S. at319 (Douglas, J., dissenting) (emphasisadded).]

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 ofone rooted in an emerging right of “privacy.” SeeWarden v. Hayden, 387 U.S. 294 (1967). Claimingdissatisfaction with the “fictional and proceduralbarriers rest[ing] on property concepts,” JusticeWilliam J. Brennan — writing for a bare majority offive justices — jettisoned the time-honored rule that asearch for “mere evidence” was per se “unreasonable.”

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7 Id. at 303-04.

8 Id. at 302.

9 Id. at 306.

10 Id. at 309.

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

Id. at 295-97. Justice Brennan claimed that thedistinction between (i) “mere evidence” and (ii)“instrumentalities [of crime], fruits [of crime] andcontraband” was “based on premises no longeraccepted as rules governing the application of theFourth Amendment.” Id. at 300-01 (emphasis added).Discarding the notion that the Fourth Amendmentrequires the Government to demonstrate that it has a“superior property interest”7 in the thing to be seized,Justice Brennan promised that his new privacyrationale would free the Fourth Amendment from“irrational,”8 “discredited,”9 and “confus[ing]”10

decisions of the past, and thereby would provide for amore meaningful protection of “the principal object ofthe Fourth Amendment [— ] the protection of privacyrather than property.” Id. at 304.

Concurring in the result, but not in the reasoning,Justice Fortas (joined by Chief Justice Earl Warren)stated that he could “cannot join in the majority’sbroad — and ... totally unnecessary — repudiation ofthe so-called ‘mere evidence’ rule.” Id. at 310 (Fortas,J., concurring). Resting his concurrence on the time-honored “‘hot pursuit’ exception to the warrantrequirement,”11 Justice Fortas sought to avoid what he

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

called “an enormous and dangerous hole in theFourth Amendment”12:

[O]pposition to general searches is afundamental of our heritage and of thehistory of Anglo-Saxon legal principles.Such searches, pursuant to “writs ofassistance,” were one of the mattersover which the American Revolution wasfought. The very purpose of the FourthAmendment was to outlaw such searches,which the Court today sanctions. I fearthat in gratuitously striking downthe “mere evidence” rule, whichdistinguished members of this Courthave acknowledged as essential toenforce the Fourth Amendment’sprohibition against general searches, theCourt needlessly destroys, root andbranch, a basic part of liberty’sheritage. [Id. at 312 (Fortas, J.,concurring) (emphasis added).]

B. The Fourth Amendment PropertyPrinciple Erased.

Had the Hayden Court not thrown out the “mereevidence” rule, there would be no doubt that nowarrant could lawfully have been issued to “covertlyinstall and monitor a global positioning system (GPS)tracking device on Respondent’s Jeep Grand

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13 See Pet., p. 3.

Cherokee.”13 According to the Government, the solepurpose of such an installation was to gather evidenceof the movement of the vehicle. Id., Pet., pp. 3-5.Indeed, by introducing the data obtained by means ofsuch a device, the Government was, in effect, forciblycollecting information about Respondent’s movementsfor the sole purpose of using such data as evidenceagainst him. Although some of the movements of theRespondent’s jeep over a month-long surveillanceperiod may have been seen by third parties, includingGovernment investigating agents, the very purpose ofthe GPS tracking system was to chronicle only thatwhich the Respondent himself would know — all of theJeep’s movements over that same period. Byextracting that information by the GPS device, theGovernment, in purpose, and in effect, wascompelling the defendant to testify againsthimself.

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

For the ‘unreasonable searches andseizures’ condemned in the FourthAmendment are almost always made forthe purpose of compelling a man togive evidence against himself. [Boyd,116 U.S. at 633 (emphasis added).]

Thus, the Boyd Court’s “mere evidence” rule

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protected the right against self-incrimination because,under that rule, search warrants “may not be used asa means of gaining access to a man’s house or officeand papers solely for the purpose of making a searchto secure evidence to be used against him in a criminalor penal proceeding.” Gouled, 255 U.S. at 309.

In explaining the property principle undergirdingthe first freedom, as protected by the FourthAmendment, the Boyd Court warned that, althoughthe evidence seized in that case complied with thewarrant requirement:

[I]llegitimate and unconstitutionalpractices get their first footing ... bysilent approaches and slightdeviations from legal modes ofprocedure. This can only be obviated byadhering to the rule that constitutionalprovisions for the security of person andproperty should be liberally construed. Aclose and literal construction deprivesthem of half their efficacy and leads to agradual depreciation of the right.... It isthe duty of courts to be watchful forthe constitutional rights of the citizen,a n d a g a i n s t a n y s t e a l t h yencroachments thereon. Their mottoshould be obsta principiis. [Id., 116U.S. at 635 (emphasis added).]

Ignoring this Court’s admonition, Justice Brennanfrankly admitted that, by erasing the propertyprotection from the Fourth Amendment, his newly-

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14 If the Government has the right to place a GPS device on acitizen's automobile to gather movement data because no citizenhas any reasonable expectation of privacy, why should not acitizen have a reciprocal right to place a GPS on a governmentofficial’s car? Surely the government official has no differentexpectation of privacy. No doubt, however, if any citizen were tobe so bold, the Government would be quick to indict him, interalia, for trespassing on government property.

minted privacy-based Hayden rule “does enlarge thearea of permissible searches.” Hayden, 387 U.S. at309 (emphasis added). He apparently assumed thatthe newly-permitted intrusions for “mere evidence”would be checked by the warrant, probable cause, andmagistrate requirements of the Amendment’s secondphrase. See id. However, as the instant casedramatically illustrates, Justice Brennan’s FourthAmendment revolution has actually undermined thewarrant, probable cause, and magistrate requirementsof the Amendment.

C. The Warrant Requirement Undermined.

Having abandoned the “mere evidence” rule for the“reasonable expectation of privacy” guideline, theHayden Court opened the door not only to a searchwarrant authorizing the installation of a GPS device,but to the implantation of such a device without asearch warrant on the theory that there is noexpectation of privacy as to a person’s movementson a public highway.14 See Pet., p. 10. Under thisview, if there were no such privacy expectation, thenthe Fourth Amendment would cease to applyaltogether, the Government having no need forprobable cause or even reasonable suspicion to place a

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tracking device on any automobile.

Just as Justice Fortas forecast, Justice Brennan’sprivacy rationale has undermined the “FourthAmendment’s prohibition against general searches.”See Warden v. Hayden, at 312 (Fortas, J., concurring).In its Petition, the Government has: (a) informed thisCourt that “federal law enforcement agenciesfrequently use tracking devices early in investigationsbefore suspicions have ripened into probable cause;”(b) argued that applying the Fourth Amendment would“prevent[] law enforcement officials from using GPSdevices in an effort to gather information toestablish probable cause;” and (c) asserted that, as aconsequence, “the government’s ability to investigateleads and tips,” will be “seriously impede[d].” Pet., p.24 (italics original, bold added). In short, theGovernment demands this Court sanction itsunbridled discretion to search suspected drivingactivities, seizing data as to the movement of vehicleson the public highways, in order to gather enoughinformation to establish probable cause to institutecriminal proceedings. The GPS technology, then,serves the Government in the same way as thediscredited general warrant — legitimizing intrusionsupon property without first having to demonstratebefore a judicial magistrate that it has “probablecause.” Indeed, if there is no reasonable expectation ofprivacy, as the Government has argued, then thewarrant requirement would not even come into play,much less would the Government be required to have“probable cause,” or even “reasonable suspicion” to

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15 The Government has attempted to reassure the Court that itneed not be concerned about its use of GPS without reasonablesuspicion in this case, since it was not in this particular case partof a “‘dragnet’ surveillance ... conducted without any articulablesuspicion” — the constitutionality of which law enforcementtechnique will need to be resolved in some future decision. SeePet., p. 15 (emphasis added). But if an individual driver has no reasonable expectation ofprivacy while driving his automobile on a public road, why wouldmany drivers cumulatively have such a privacy expectation?

install a GPS on one's automobile.15

As the Boyd Court recalled, the FourthAmendment’s prohibition against “unreasonablesearches and seizures” was the direct product of thegovernment practice “of issuing writs of assistanceto the revenue officers, empowering them, in theirdiscretion, to search such suspected places forsmuggled goods, which James Otis pronounced ‘theworst instrument of arbitrary power, the mostdestructive of English liberty and fundamentalprinciples of law, that ever was found in an Englishlaw book.” Boyd, 116 U.S. at 625 (emphasis added). Inhis classic Treatise on Constitutional Limitations,renowned constitutional scholar, Thomas Cooley,ranked the Fourth Amendment guarantee of “citizenimmunity in his home against the prying eyes of theGovernment, and protection in person, property, andpapers against even the process of law” next inimportance to the constitutional ban on personalslavery. T. Cooley, A Treatise on ConstitutionalLimitations, p. 365 (5th ed., Little, Brown: 1883)(emphasis added).

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While one’s personal automobile has not yetachieved the exalted status of the home, the FourthAmendment pronounces that “persons,” “houses,”“papers,” and “effects” are equally secured fromunreasonable searches and seizures. Each is a right ofthe people, and best protected by enduring,unchanging common law rules of private property, notby modern evolving chameleons invented by judges.

IV. THE FOURTH AMENDMENT PROTECTSNOT ONLY AGAINST THE SEIZURE OFDATA BY GPS DEVICES, BUT THE VERYUSE OF SUCH DEVICES.

According to the laws of nature, “every Man has aproperty in his own person.” J. Locke, The SecondTreatise on Civil Government, Chap. V, sec., 27 (1690).For the Government to claim a right to stalk anyperson suspected to be engaged in criminal activity istantamount to a claim that a concerned father mightmake to keep track of a young daughter simply tomake sure that she behaves. In the Americanconstitutional republic, founded by “We, the people,”the Government’s relationship with its citizens wasnever intended to be upended by this kind of statepaternalism.

The Government attempts to excuse its covert GPSsurveillance of respondent’s automobile because “theGPS data introduced at trial related only to themovements of the Jeep on public roads.” Pet., p. 5.But once installed, the GPS gathered data while thevehicle was on private property. Id. Under theprivacy rationale of the Fourth Amendment, all of the

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16 See Luke 22:25.

17 This “maxim” may now be inoperative in Indiana where, lastweek, the State Supreme Court rejected the common law rule,

judges below agreed that the evidence gathered whilethe vehicle was on private property should besuppressed. They differed in opinion only on thequestion whether the evidence gathered while thevehicle was on public roads should be admitted. Yet,the intrusion on respondent’s person was the same.The Government was surreptitiously trackingrespondent’s vehicular movements as if theGovernment has an inherent right to gather “immenseamount[s] of information about a person’s private life”— whether it be by “use of pen registers, repeatedtrash pulls, aggregation of financial data, [or]prolonged visual surveillance” — limited only bywhatever technology and funds were at theGovernment’s disposal in its absolute autonomousdiscretion. See Pet., pp. 24-26.

Unlike other nations in which the governingofficials are Lords and Benefactors,16 under the UnitedStates Constitution, the federal Government is theservant of a sovereign people. The FourthAmendment, as originally designed and purposed, wasto ensure that the Government honored thatrelationship, preserving the right of private propertyas the enduring barrier against a totalitarian State.As Professor Cooley so memorably wrote:

The maxim that ‘every man’s house is hiscastle,’17 is made a part of our

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dating back to the 1215 Magna Carta, that a home owner has aright to resist an unlawful police entry on the ground that such aright is “against public policy and incompatible with modernFourth Amendment jurisprudence.” See Barnes v. Indiana, Sup.Ct. No. 82S05-1007-CR-343, 2011 Ind. LEXIS 353, p. 3.

constitutional law in the clausesprohibiting unreasonable searches andseizures, and has always been lookedupon as of high value to the citizen.[Cooley’s Treatise at p. 365 (footnoteadded).]

And, the Amendment’s express language stretchesbeyond one’s home, to one’s person, papers, and effects— including one’s automobile — each of which isprotected by the common law of private property. Theprevailing Fourth Amendment jurisprudence basedupon the malleable “reasonable expectation of privacy”is unworthy of this great liberty.

V. THE FOURTH AMENDMENT PROTECTSTHE PEOPLE FROM TYRANNY.

These amici curiae represent organizationsprimarily concerned with First and SecondAmendment matters. They are therefore aware of thehistory of the primary role that government searchesand seizures have served in the enforcement of lawsaimed at political dissenters. Indeed, it would be a“misread[ing] [of] history [to] relat[e] the FourthAmendment primarily for searches for evidence to beused in criminal prosecutions.” See Frank v.Maryland, 359 U.S. 360, 376 (1959) (Douglas, J.,

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dissenting). Rather, the Fourth Amendment wasdesigned to protect the political and religiousnonconformist from the use of general warrants tosuppress the freedoms of religion and the press. Seeid., 359 U.S. at 376-77 (Douglass, J., dissenting).Indeed, the general warrant was a primary toolemployed by the Star Chamber not only in the area oftrade and commerce, but in political and religiousmatters as well. See J. Scarboro & J. White,Constitutional Criminal Procedure, pp. 23-24(Foundation Press:1977).

Even after the Star Chamber was abolished in1648, the English crown attempted to suppresspolitical dissent, utilizing the general warrant toconfiscate whole libraries of authors of “seditiouspapers.” Such practices endured well into the 18th

Century when Lord Camden issued his opinion inEntick v. Carrington, 19 How. St. Trials 1030 (1765),establishing both the property principle and thewarrant requirement of the Fourth Amendment, asarticulated and embraced in Boyd. See id., 116 U.S. at625-30.

While this case involves a matter of quite adifferent genre, the Fourth Amendment jurisprudenceapplied here impacts upon the increasingly intrusiveadministrative enforcement of regulations governingvarious aspects of modern life, including, for example,air travel. Indeed, in the administrative state that theUnited States increasingly resembles, the FourthAmendment’s warrant and probable cause standardshave already been weakened in such cases as Camarav. Municipal Court, 387 U.S. 523 (1967) (authorizing

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warrants to be issued without probable cause toinspect homes by city housing inspectors) and UnitedStates v. Biswell, 406 U.S. 311 (1972) (upholding afirearms statute authorizing warrantless searches ofFederal Firearms Licensees). Such diminutions inliberty are inevitable if Fourth Amendment rights areprotected by a test that turns on current societalprivacy expectations, rather than on historic andenduring rights of private property. As JusticeDouglas so wisely observed: “Power is a heady thing;and history shows that the police acting on their owncannot be trusted.” See Frank, 359 U.S. at 380(Douglas, J., dissenting).

While even rules based on the right to privateproperty are no guarantee of the people’s liberty, thiswas the approach chosen by the founders as the bestway that the people can protect themselves from aGovernment that it feared could someday seize thesame type of tyrannical powers claimed by KingGeorge. The founders probably could not haveanticipated how far we have fallen, with bureaucratsenforcing unnumbered incomprehensible regulations,physically patting down men, women and childrenbefore being allowed the privilege to travel, and evenprying into how the people eat, drink, speak, andmaintain their physical health. As the Governmentextends its dominion over historically sacrosanct areasof individual discretion, one’s “reasonable expectationof privacy” correspondingly shrinks. Although allconstitutional provisions should be understood by theirtext, and authorial intent, the modern method ofdetermining its meaning from what people presumablynow think or expect, renders clear terminology

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meaningless and the Constitution powerless.

With an emasculated Fourth Amendment, whywould the Government refrain from generalizedstealth surveillance? Undeterred by this Court’srulings in cases like United States v. Knotts, 460 U.S.276 (1983), the Government operates under no FourthAmendment disincentive from using virtually anysophisticated surveillance device, yet undisclosed orunimagined. Such technology may be deployed —without a warrant — against anyone as long as itgathers at least some evidence where there is no“privacy expectation.” As a result, only a slightfraction of one’s waking hours may be affordedprotection from these all-seeing eyes of Government.The judicial abandonment of the mere evidence rulefosters this movement toward warrantlesssurveillance. Such government surveillance is enoughto make the most devoted Orwellian swell with pride.Most assuredly, however, it would have fomented aninsurrection by America’s founders.

CONCLUSION

The Hayden opinion does not advance the cause ofliberty. Rather, its privacy expectation approach tothe Fourth Amendment has created an inverserelationship between the growth of Government andthe protections of that Amendment. Bluntly put, ifHayden is left standing, it encourages tyranny, notfreedom. Only by embracing the foundationalprinciples of private property enshrined in the FourthAmendment will the people’s liberties be restored.

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For the reasons stated, this Court should grant theGovernment’s petition for a writ of certiorari, andinvite the parties to submit briefs and argumentaddressing the question whether Warden v. Haydenshould be overruled, and the textually-faithful rules ofBoyd and Gouled be restored.

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