The Supreme Court, Monday, denied the government’s petition to reinstate the drug conviction of Antoine Jones after it was reversed by the DC Circuit. Jones was convicted after government agents attached a GPS monitor to the underside of the automobile that he drove for four weeks obtaining 2000 pages of data showing every place he went.

While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

The issue of criminal contempt was raised in a case before the Circuit Court for the District of Columbia.

The defendant ¹ was convicted of second degree murder and sentenced to twenty-six years imprisonment followed by five years of supervised release. Following the sentencing the court held a hearing and sentenced him to an additional three years since the murder was a violation of a supervised release in a prior drug case. At the end of the hearing the defendant said “Fuck y’all” so that the judge and everyone else in the courtroom could hear him/her. The judge immediately sentenced the defendant to one year for criminal contempt, consecutive to the murder and drug sentences. A judge can summarily punish contempt if it is done in the judge’s presence and the judge witnesses or hears the contempt.

“Criminal contempt includes misbehavior of any person in [the court's] presence or so near
thereto as to obstruct the administration of justice.” The defendant appealed. He/she claimed that, while, he/she misbehaved, he/she did not obstruct justice and if he/she obstructed justice he/she did not do it with the required intent to do so. The defendant claims that he/she did not obstruct justice because the profanity was issued after the hearing was over. The court found that it is immaterial when the statement was said.
Whether it was during the hearing or after the hearing it showed disrespect for the court and therefore the judge was correct in finding contempt.

In support of the court’s finding the Circuit Court quoted the First Circuit Court of Appeals’ statement that:

One must appreciate that courtrooms, especially in criminal cases, are theaters of extreme emotion—stoked by the facts of the alleged crimes, the tensions of striving lawyers and hostile cross examination, and the fearsome stakes.Every trial judge knows how easy it is for matters to get out of hand. Indeed, the black robe, the call “all rise,” and the deference exacted by judges have their main warrant in the need for order. By its tendency to undermine order, a party’s deliberate cursing of a judge in open court can depending on the circumstances readily be viewed as obstructive.

But it is exactly because the extremely emotional and tense situation in a courtroom that some leeway must be granted, particularly when a jury is not present. People, at least those who, unlike lawyers, judges and judicial staff, do not spend their lives in courtrooms tend at times to say things they might regret later. These statements are often spontaneous ² and said without thinking.

The Circuit Court reduced the sentence to six months since six months is the maximum that a defendant can be sentenced without waiving his/her right to a jury trial.

An automobile mechanic discovered a GPS device attached to Yasir Afifi’s vehicle when Afifi took the car in for an oil change. Why the FBI attached the device to Afifi’s car we do not know. Afifi lives in California where the Ninth Circuit has ruled that a search warrant is not necessary to place a GPS device on a vehicle. If he lived in the District of Columbia the result would be different because the DC Circuit has ruled that a warrant is necessary ¹ and the FBI would have had to file an affidavit showing probable cause with the court in order to obtain a warrant to place a GPS device under the vehicle.

What we do know is that Afifi is an Arab-American, that his father was active in community affairs and that Afifi maintains contact with friends and family in Egypt. None of these are good reasons and they would not support a search warrant. But as long as the Ninth Circuit finding that GPS attached to a vehicle on public roads does not violate an individual’s reasonable expectations of privacy remains in effect, Afifi’s has limited legal recourse.

This is just one more reason that we need the Supreme Court to review the issue.The Supreme Court in United States v. Knotts ruled that it did not violate the Fourth Amendment to place a beeper in a barrel of chloroform on the back of a truck as a means to aid agents keep track of a vehicle during a short trip. The Ninth Circuit and the Virginia courts have ruled that this justifies the use of GPS to keep track the the whereabouts of a vehicle on a public road. But the technology has changed considerably since the 1983 Knotts decision and as I have suggested before now it is time for the Supreme Court to review the situation, particularly in light of the mixed decisions of lower courts and state courts.