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O’Melveny Secures Unanimous Supreme Court Victory in Landmark Fourth Amendment Case

January 24, 2012

FOR IMMEDIATE RELEASE

 

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Piper Hall                                                      Sonja Steptoe

O’Melveny & Myers LLP                            O’Melveny & Myers LLP

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WASHINGTON, DC ─ JANUARY 24, 2012 ─ O’Melveny & Myers LLP’s Appellate Practice won a landmark victory on January 23 before the United States Supreme Court in United States v. Jones. In a unanimous decision in what is arguably the most important Fourth Amendment decision in decades, the Court held that the Fourth Amendment prohibited law enforcement from using GPS devices to conduct surveillance on suspects without a valid warrant.  This closely watched case is one of the first Supreme Court decisions to address the scope of privacy in the context of satellite surveillance and could have a significant impact on police procedure. 

O'Melveny represented respondent Antoine Jones pro bono, in association with Stephen C. Leckar, who argued the case before the Justices.  O’Melveny partner Walter Dellinger and associate Micah W.J. Smith were the principal strategists and authors of the certiorari-stage and merits brief and helped prepare Leckar for oral argument. 

In an opinion by Justice Scalia, the Court held that the Fourth Amendment's protection of "persons, houses, papers, and effects, against unreasonable searches and seizures" extends to private property such as an automobile, and that the government had no authority to place the GPS device without a valid warrant.  "The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted," Justice Scalia wrote, joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

In a groundbreaking concurring opinion, Justice Sotomayor echoed various themes that O’Melveny developed in its merits briefing.  She noted that “because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices:  ‘limited police resources and community hostility.’”  And she added that “[a]wareness that the Government may be watching chills associational and expressive freedoms,” and permitting the Government “unfettered discretion” to track any person would threaten to “alter the relationship between citizen and government in a way that is inimical to democratic society.”  She also rejected the notion that “secrecy [i]s a prerequisite for privacy.”  All of these themes were developed in O’Melveny’s brief.

Concurring in the judgment, Justice Alito rejected Justice Scalia’s property-focused test, and instead argued that the Court should have ruled in Jones’s favor on the ground that the GPS tracking violated Jones’ “reasonable expectation of privacy.”  Justice Alito reasoned that “society’s expectation has been that law enforcement agents and others would not -- and indeed, in the main, simply could not -- secretly monitor and catalogue every single movement of an individual’s car for a very long period.”  Justice Alito was joined by Justices Ginsburg, Breyer, and Kagan.

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