About as long as law enforcement has had trackers, the courts held that the installation of the tracker to the undercarriage was not a search and did not require a warrant. However, in 2012 the Supreme Court decided the case of United States v. Jones, where the Court found that the attachment of a tracker to the Jeep of Mr. Jones constituted a search under the Fourth Amendment. Whether such a search requires a warrant was not addressed in the opinion.
Legal Supplement
U.S. v. Jones, 565 U.S. 400 (2012),
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.
This Court has to date not deviated from the understanding that mere visual observation does not constitute a search.
By attaching the device to the Jeep, officers encroached on a protected area.
The Government argues in the alternative that even if the attachment and use of the device was a search, it was reasonable—and thus lawful—under the Fourth Amendment because “officers had reasonable suspicion, and in- deed probable cause, to believe that [Jones] was a leader in a large-scale cocaine distribution conspiracy.” Brief for United States 50–51. We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it. See 625 F. 3d, at 767 (Ginsburg, Tatel, and Griffith, JJ., concurring in denial of rehearing en banc). We consider the argument forfeited.
