Back to the Future: The Curious Case of United States v. Jones

17 Pages Posted: 28 Feb 2013 Last revised: 12 Mar 2013

See all articles by Erin Murphy

Erin Murphy

New York University School of Law

Date Written: 2012


Historically, the Supreme Court has couched the protections of the Fourth Amendment in the language of privacy and property. Yet expectations about freedom from government interference are no longer solely expressed in those terms. People routinely trade their privacy or property interests for complimentary e-mail services or faster toll crossings, and yet unfettered access to such information strikes many observers as contrary to the Fourth Amendment’s core values. If neither privacy nor property theories provide a constitutional basis for oversight, however, then what does?

In Jones, the Justices were confronted with just this dilemma. In response, as this Essay will show, roughly half of the Justices followed Justice Scalia into the shelter of originalism. The other half, led by Justice Alito, ventured a bit more boldly into the great unknown, but ultimately punted responsibility to a coordinate branch. Only Justice Sotomayor made a first attempt at tackling the problem, but she wrote alone. Regrettably, none of the opinions offered lasting guidance to lower courts, much less to law enforcement actors. Nevertheless, this essay argues that each is still notable for some aspect of what it conveys. Moreover, it closes by postulating that Jones is most interesting for what it didn’t say — press reports proclaiming "warrant needed for GPS tracking!" notwithstanding.

Keywords: GPS, criminal procedure, technology, location tracking

Suggested Citation

Murphy, Erin Elizabeth, Back to the Future: The Curious Case of United States v. Jones (2012). Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012; NYU School of Law, Public Law Research Paper No. 13-10. Available at SSRN:

Erin Elizabeth Murphy (Contact Author)

New York University School of Law ( email )

40 Washington Square South
New York, NY 10012
United States
212-998-6672 (Phone)

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