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June 28, 2011

Supreme Court to Hear Case on GPS Tracking

Washington D.C. police placed a GPS tracking device on the vehicle of suspected drug dealer. The police tracked the movements of the vehicle for a month and were able to use that information to obtain a conviction. An appeals court in Washington overturned the conviction, holding that the evidence obtained in the GPS surveillance cannot be used since there was no search warrant.

From the Washington Examiner:

Two other courts have ruled that police can use GPS monitoring without a warrant.

The Virginia Court of Appeals ruled in favor of the tactic when Fairfax County Police put a GPS device on the van of a convicted rapist suspected in a series of attacks. The court said he had no expectation of privacy on a public street.

California's 9th Circuit Court of Appeals, ruling that installing a GPS to track a suspect is no different than having an officer tail him, also authorized the use of warrantless GPS tracking.

The Supreme Court will answer two questions regarding the high-tech surveillance, said Marc Rotenberg, executive director of the Electronic Privacy Information Center: the constitutionality of installing a warrantless GPS device, and then using one to track a vehicle's movements.

Rotenberg said that allowing GPS surveillance without a warrant could have far-reaching implications.

"If the court does not establish constitutional safeguards, the police will have unrestricted authority to monitor the travels of virtually anyone they want," he said.

As most know, the Fourth Amendment prohibits unreasonable search and seizure. For a search to be lawful, a warrant must be issued. Some may not know that the only teeth the Fourth Amendment has is the exclusion of evidence obtained in violation of its provisions. This is meant to discourage law enforcement.

There are exceptions to the warrant requirement. One of those has to do with whether a person has a reasonable expectation of privacy that a certain location or activity is private. If there is no reasonable expectation of privacy, no warrant is necessary.

This is a general description. Be aware that every word in Fourth Amendment jurisprudence is a mine in a minefield, and lawyers and judges strive to be exact at all times.

The appeals court said that the government must obtain a warrant for such prolonged electronic monitoring. The government argues that placing the device on the car is no different from having an officer tail the vehicle in public. Certainly, the police can do that. But 24/7 for a whole month? It is the intensity and duration of that surveillance that is likely to push this set of facts into the unreasonable search category.

The government will also argue that this form of surveillance is very valuable to law enforcement. "Gee, we like it a whole lot" is a silly argument, though, since any form of unlimited search would grow to become valuable to law enforcement.

I think the appeals court will be upheld.


Chief Justice Roberts behind the scenes in the Supreme Court building later this year . . .

Writing for the majority, Chief Justice Roberts will crib extensively from this scene, probably taking all of that stuff about slurring the meaning of the words and the line "tall words, proudly written." Justice Kennedy will play the dumb guy in the llama-skin tunic who must be dragged to the truth.

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posted by rdbrewer at 02:35 PM

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