I long have believed that the best predictor of whether the U.S. Supreme Court finds a violation of the Fourth Amendment is whether the justices could imagine it happening to them. For example, the Supreme Court upheld drug-testing requirements in every case until it considered a Georgia law that required that high-level government officials be subjected to it. The two Fourth Amendment decisions this term, U.S. v. Jones and Florence v. Board of Chosen Freeholders of Burlington County, powerfully illustrate that the justices only seem to care if it could happen to them.
In Jones, the Supreme Court considered whether the police placing a GPS device on a person’s car and tracking its movements was a violation of the Fourth Amendment when there was not a warrant authorizing this. I was confident in predicting the outcome when a justice at oral argument asked the government lawyer whether the government’s position meant that a police officer could put a GPS device on a justice’s car and track its movements. Another justice asked if it meant that a police officer could slip a GPS device into his pocket without a warrant.
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