4 Pages Posted: 4 Aug 2012 Last revised: 28 Oct 2015
Date Written: June 4, 2012
The Supreme Court held in United States v. Jones that prolonged GPS tracking infringes upon a Fourth Amendment interest, but left for another day whether that means that a warrant is required for all such surveillance activity. Building on Supreme Court precedent that directly addresses the problem of "standardless and unconstrained discretion," we propose that courts test the constitutionality of police action of this kind by examining the adequacy of procedural safeguards and actual police compliance therewith. Accordingly, in a range of settings involving new technologies, the state would need to craft reasonable safeguards against standardless discretion, and then comply with those safeguards in order for state action to be deemed constitutional.
Keywords: Jones, GPS tracking, location tracking, surveillance, standardless discretion
Suggested Citation: Suggested Citation
Murphy, Erin and Swire, Peter, How to Address Standardless Discretion after Jones (June 4, 2012). Ohio State Public Law Working Paper No. 177. Available at SSRN: https://ssrn.com/abstract=2122941 or http://dx.doi.org/10.2139/ssrn.2122941
By Orin Kerr
By Erin Murphy