Justices were interested in broader implications
By Kimberly Atkins
The Daily Record Newswire
BOSTON — Arguing before the U.S. Supreme Court for the first time is a big assignment for any attorney. But when the case has the potential to lead to a blockbuster Fourth Amendment ruling addressing the privacy rights of citizens in an electronic age, it can be a particularly daunting task.
When Stephen C. Leckar faced that challenge representing the defendant in GPS tracking case U.S. v. Jones, he took a deliberate approach; he focused on his client. Instead of urging the Court to adopt an
expansive ruling, he tried to convince a majority of the justices that a narrow one would do.
“It’s a conservative Court,” said Leckar, a Washington solo practitioner. “I understand that and I respect that. I wanted to preserve my client’s victory and to advance the narrowest theory that I thought I could.”
So Leckar argued that when the police installed a GPS tracking device on the car of his client, Antoine Jones, without a valid warrant, they committed a trespass. As a result, the month-long electronic surveillance of the movements of Jones’ car was an impermissible search.
But at oral arguments, it became clear that the justices were interested in the broader implications of the case, so Leckar had to think big.
“I knew there was something bigger here,” he said. “This case had the potential to have a significant impact as to the use of cyber technology. It was going to have implications for things like cell phone tracking and
drone technology. There will be a line of cases coming from this that will build on that one way or another.”
In the end Leckar was victorious, obtaining a 9-0 victory for his client in a decision comprised of two, separate five-justice majorities: one contingent embraced the trespass theory advanced by Leckar, and the second suggested that long-term warrantless electronic surveillance could implicate individuals’ privacy rights.
State and federal lawmakers, as well as lower courts, are now examining the reach of the ruling, and the full impact still remains to be seen.
Interestingly, criminal litigation isn’t even the focus of Leckar’s practice — it’s more or less a hobby.
“I’m a commercial litigator” who does criminal appellate work on the side, he said. “I love the challenge of a good criminal appellate case. Some of them are humdrum, but typically they are fascinating. And you are representing someone who is up against the system.”
Leckar is reluctant to take credit for the win in the GPS case, giving praise to the attorneys who helped him prepare, including Supreme Court litigator and former acting solicitor general Walter Dellinger, who now heads the Harvard/O’Melveny Myers Supreme Court and Appellate Practice Clinic.
And ultimately, said Leckar, it was the justices who made the difference.
“I’m just the guy making the argument,” he said.
