Case5:15-xr-90304-HRL Document30 Filed07/29/15 Page14 of 46 1 for twenty-eight days. Id. at 948 (majority opinion). The majority opinion held that the 2 government violated the Fourth Amendment by the physical trespass of placing the tracking 3 device on the vehicle without the defendant’s consent. Id. at 949. The majority therefore did not 4 need to address whether the government’s location tracking also violated the defendant’s 5 reasonable expectation of privacy. Id. at 950-51. The majority explicitly noted, however, that 6 “[s]ituations involving merely the transmission of electronic signals without trespass would 7 remain subject to Katz analysis.” Id. at 953. 8 United States District Court Northern District of California 9 The five Justices who did engage in a Katz analysis concluded that the government’s actions in tracking the car’s location over twenty-eight days violated the Fourth Amendment. 10 Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring); id. at 964 (Alito, J., concurring in the 11 judgment). Although the government tracked the car only as it traveled in plain sight on public 12 streets and highways, Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, concluded 13 that the GPS monitoring “involved a degree of intrusion that a reasonable person would not have 14 anticipated.” Id. at 964 (Alito, J., concurring in the judgment). Consequently, those four Justices 15 found that “the use of longer term GPS monitoring in investigations of most offenses impinges on 16 expectations of privacy.” Id. Notably, this conclusion did not depend on the type of technology 17 used to track the car in Jones. Rather, the four Justices emphasized the proliferation of modern 18 devices that track people’s movements, noting that cell phones were “perhaps [the] most 19 significant” among these. Id. at 963. 20 Justice Sotomayor agreed with her four colleagues that prolonged electronic surveillance 21 would violate the Fourth Amendment. Jones, 132 S. Ct. at 955 (Sotomayor, J., concurring).4 She 22 added, however, that “even short-term monitoring” raises concerns under Katz because “GPS 23 24 4 25 26 27 28 Justice Sotomayor also signed on to the majority’s trespass-based holding. Jones, 132 S. Ct. at 954 (Sotomayor, J., concurring) (“I join the Court’s opinion because I agree that a search within the meaning of the Fourth Amendment occurs, at a minimum, where, as here, the Government obtains information by physically intruding on a constitutionally protected area.” (brackets and internal quotation marks omitted)). 14 Case No. 15-XR-90304-HRL-1(LHK) ORDER AFFIRMING DENIAL OF APPLICATION FOR HISTORICAL CELL SITE LOCATION INFORMATION