Brent Nyitray
Fairlington Blade
Let the mutherfuker burn!
jnc4p
Kevin S. Willis
Michigoose
lmsinca
markinaustin
Arcanaut
novahockey
quarterback
ScottC
yellojktThe Supremes are about to hear a wonderful (read: law school exam problem, argue both sides) new search and seizure case. Can police attach a GPS unit to your car for a month at a time without a warrant? The liberal 9th Circuit said “yes”, the leaning conservative DC Circuit said “no.” The case was so well covered by Nina Totenberg this morning that I am laying out the whole NPR report. You non-lawyers may think this one is fun. For an aficionado of the Supremes, like Mike Teng, this case points up how original intent often just does not get us very far with new technology. I tend to think the government position on unreasonable search is stronger here, but I am bothered by the secondary argument about “seizure“, as are many prosecutors, according to NT’s story. If you found a police GPS bug on your car and you removed it, I think you would be within your rights, and not obstructing justice. But does that mean police need a warrant to place it? Is it an unreasonable seizure of your car? Read on.
DoPolice Need Warrants For GPS Tracking Devices?
Yasir Afifi/AP
The Supreme Court considers whether GPS monitoring devices like this one may be affixed to suspects’ cars without a warrant from a judge.
November 8, 2011
The U.S. Supreme Court, an institution steeped in tradition, steps into the turbulent world of new technology Tuesday. At issue before the court is whether police must get a warrant from a judge before they can attach a GPS tracking device to a car so they can monitor a suspect’s every movement for an indefinite period of time.
The case could have enormous implications for privacy rights in the information age.
Police, quite naturally, want to use new technology to get the goods on the bad guys, and citizens, quite naturally, think that when they leave their homes, they still have some zone of personal privacy in their cars. This case presents that clash in vivid terms.
In 2004, a joint FBI-Washington, D.C., Metropolitan Police task force began investigating suspected drug kingpin Antoine Jones. First they got a warrant and wiretapped him, but Jones was careful about how he spoke on the phone. So then they put a GPS tracking device on his car, and for 28 days, every time that car moved, its location was tracked by satellite, with the information sent every 10 seconds to the FBI. The tracking led to Jones’ arrest, plus the seizure of 97 kilos of cocaine and $850,000 at a stash house. Jones was convicted of conspiracy to distribute drugs, but a panel of conservative and liberal judges on the U.S. Court of Appeals in Washington unanimously threw out the conviction because the tracking device had been attached without a warrant. The court said that tracking a car for such a long period without court authorization violates the Fourth Amendment’s ban on unreasonable searches.
The government appealed to the U.S. Supreme Court, contending that no warrant is required when a car is on public roads. And the Supreme Court hears arguments Tuesday in the case.
“It’s critical to understand that this case is not about whether law enforcement can use GPS devices. It’s about whether they should get a warrant,” says lawyer Walter Dellinger, who represents Antoine Jones.
“If the Supreme Court gave a green light” to warrantless GPS tracking, he adds, then “any officer can install any GPS device for any reason on anybody’s car, even if the officer thinks it would be interesting to know where Supreme Court justices go at night when they leave the courthouse. No one would be immune from having a GPS device installed on their vehicles.”
The government, however, contends that the Fourth Amendment only bans warrantless searches of private spaces, like the home, or the interior of a car, or a locked office desk. And the Supreme Court has previously held that searches on public streets — of trash put out for pickup, for instance — do not require a warrant. In addition, the government asserts that the GPS device is just an electronic extension of old-fashioned human surveillance.
Pat Rowan, a former federal prosecutor and assistant attorney general in the Bush administration, supports that view. “There’s no Fourth Amendment implication for what a person is doing out in the public space, whether they’re walking down the street and being observed or whether they’re driving down the street and being observed,” he says.
Rowan concedes that everyone has what he calls “an instinctive reaction” that warrantless GPS tracking goes too far. But, he adds, “you are talking about a very clear line that the Supreme Court has laid down over a very long time, that what the police can observe in public, the individual doesn’t have a reasonable expectation of privacy in. And this is the functional equivalent of having the police do a very effective covert surveillance of an individual over a long period of time.”
Rowan does say as a practical matter that it would be next to impossible to conduct surveillance for a month without being detected. That’s why the GPS is a game changer and, as Rowan puts it, a “terrific boon” for police. So why not get a warrant first? Because to get a warrant, police have to show they have probable cause to believe a crime is occurring or has occurred. And the government says GPS tracking is particularly useful at the early stages of an investigation — before probable cause can be established. “You have a lead against a person, but it’s not corroborated,” says Rowan. “You don’t know what they’re up to. This is a low-cost device that would allow the FBI or any law enforcement agency to gather a great deal of information about their movements without having to go to a judge and justify their investigation.”
That’s exactly the point, counters Dellinger, the defendant’s lawyer. “The government’s position is that any law enforcement officer, in his completely unfettered discretion, can choose to put this device on anyone’s car and track what medical appointments you go to, what religious groups you meet with, what political activities you drive to. This is really an extraordinary undertaking and one where the critical protection would be that a neutral magistrate would approve in advance whether there is actually some probable cause to believe someone has committed a crime before you install a GPS device,” he says.
Dellinger has a second argument, not addressed by the appeals court, but that is before the Supreme Court. The Fourth Amendment to the Constitution bans not only unreasonable searches, but also seizures of a property. He argues that placing the GPS device on the exterior of Jones’ car interfered with Jones’ right to exclude others from using his car, and that planting the device constituted a trespass on Jones’ property. That argument does appeal to former Assistant Attorney General Rowan, who opines that “it just doesn’t sound right” that there is no expectation of privacy when a device is covertly affixed to a car.
Indeed, an unscientific sampling of prosecutors shows a real hesitation about how far to push the envelope with GPS devices.
David Kelley, the former U.S. attorney in New York, who spent nearly 20 years as a federal prosecutor, says he always assumed that a warrant was needed for a long-term tracking device. “The four corners of the car is yours,” he contends. “And you have a reasonable expectation of privacy in that.”
Kelley concedes that requiring a warrant will mean some bad guys get away. “Tough luck,” he says. “Go find another way to get the guy. And if you can’t get probable cause, you know what? Maybe you have no business getting into that car to put in that device.”
While today’s case involves GPS devices, it could have enormous repercussions for other devices in the information age. What about cameras that photograph people on public streets? What about cellphones that can be tracked whenever they are on?
Defense attorney Dellinger maintains those are different: The cameras are stationary, and the cellphones can be turned off.
The Supreme Court is usually reluctant to rule boldly on matters of new technology. It has learned, the hard way, that the reach of new technology is hard to predict. In the 1920s, when law enforcement began wiretapping suspects, the court ruled that no warrant was required.
Nearly four decades later, in 1967, the court overruled that decision and said a warrant is required.
The court’s only ruling on any sort of a car tracking device was in 1983. In that case, the court approved the placement, without a warrant, of a beeper in a large container that suspects put in their car. Police then followed the sound of the beeper for a single day. The court, however, specifically left open the question of whether any longer-term tracking device would require a warrant.
In recent years, the lower courts have split on the question.
In Washington, D.C., Judge Douglas Ginsburg, writing for a unanimous appeals court panel, said a warrant was required in the Jones case because of its intrusiveness. “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups.”
The likelihood that police could conduct such a monthlong, 24/7 surveillance by just watching and following the suspect, he said, is “nil.”
When the full nine-member appeals court declined to review the panel’s decision, Chief Judge David Sentelle dissented. “A person’s reasonable expectation of privacy while traveling on public highways is zero,” he said, and “the sum of an infinite number of zero-value parts is zero.”
That dissenting view prevailed on the opposite coast when the Ninth Circuit Court of Appeals, based in San Francisco, ruled that no warrant is required in GPS cases. When the court declined to reconsider its ruling, Chief Judge Alex Kozinski, a native of communist Romania who immigrated to the United States with his parents in 1962 when he was 12, dissented. “There is something creepy and un-American about such clandestine and underhanded behavior,” he wrote of the warrantless placing of GPS tracking devices. “To those of us who have lived under a totalitarian regime, there is an eerie feeling of deja vu.”
Filed under: Uncategorized |
All Things in Moderation 
Mark:The case was argued this morning. Orin Kerr attended the orals (duh) and has a blog post at VC.Kerr on US v. Jones
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The cops/gov't seem to presume that cars are only used on public roads.
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Thanks for the link, Mike. I knew you would love this one. It is such a close call.Brian, I think the police only attach the GPS while it is on a public street. If that makes a difference to you!Mike, I added the Volokh link to Kev's ACA cite below. I think it is significant who wrote that op.These are the kinds of cases that put the lie to the notion that justices are bound by their politics, and I wish the public would understand that.
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Thanks for this post, Mark. I heard Nina's story this morning (I generally enjoy her reporting on the Supremes) and thought that this is quite an interesting case. I'm trying to remember which TV show it was (either NCIS or Law and Order, I believe) that did an episode on this with the suspect removing the GPS and that was what led to his arrest (and then the subsequent argument among lawyers about whether or not he could do that). I don't remember the denoument of the show, so I may have to try and track it down and send it to KW for the evening Bits & Pieces. We'll see if (1) I have time and (2) if I can find it. . .
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Thanks for posting this Mark. I had read about this earlier but had, ahem, lost track of it. Michi — there was a case in California where a kid found an FBI tracking device on his car and posted picture online. The FBI was not amused. I think it was on one of the gawker site — japolink or gizmodo.
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it's actually a Wired piece that was picked up my gawker media. and that's the device in the picture mark posted. http://www.wired.com/threatlevel/2010/10/fbi-tracking-device/
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"Brian, I think the police only attach the GPS while it is on a public street. If that makes a difference to you!"Sure, but it remains attached to your care even after you park the car in your driveway or in your garage or drive it into your privately owned warehouse full of cocaine. So they arguably know how long you spend at home or participate in a wide variety of private activities. Admittedly they could learn the same thing from staking out your house. It's why it is such a close call, as you say Mark. Thanks for posting this.
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NoVA: "Michi — there was a case in California where a kid found an FBI tracking device on his car and posted picture online. The FBI was not amused. "Then they shouldn't have put it on his car! "So they arguably know how long you spend at home or participate in a wide variety of private activities."So does Progressive Auto Insurance. They say there's no GPS information. Uh-huh.Soon this kind of stuff is going to be in all new vehicles by law. It'll be a felony to remove them. The debate will only be about who gets to access detailed information about your driving and win. That's my theory, anyway.
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somewhat related, i was all set to opt out and and get a freedom grope from the TSA a few days ago, but was traveling with mrs. hockey who requested that i do so while traveling alone.
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From the story:"The likelihood that police could conduct such a monthlong, 24/7 surveillance by just watching and following the suspect, he said, is "nil.""Perhaps but it has almost all to do with resources as opposed to ability. Could they? Yes. Would they? No…because they have other competing interests and activities that make this unworkable in almost all cases. However, I see little difference in the actual results. If a cop wants to follow you 24/7 for a month without a warrent, it is legal, he can determine if you are a church-goer, what movies you like, etc. The same holds true for the GPS method. The only difference I see is the expense.Now actually invading your car seems a more pertinent question for me. But if a tow-truck driver can (apparently legally) do it, why can't a cop?
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NoVA:somewhat related, i was all set to opt out and and get a freedom grope from the TSA a few days ago, but was traveling with mrs. hockey who requested that i do so while traveling alone.Mrs. Hockey didn't want to witness you getting felt up by another man? Or were you ready to do the full monty in secondary screening?
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I think NoVa is saying he was going to opt out of the freedom grope, but his wife requested he do so when he is travelling alone rather than when she is with him. Dave!- A tow truck is generally not a state actor so the prohibition on unreasonable searches and seizures does not apply.
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ash is right — i went through the scanner b/c my wife didn't want to be delayed any more than necessary by security. I'm traveling alone in a few weeks and intend to opt out then. i wanted to remain silent when questioned by customs after returning from Europe by she didn't go for that either.
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Presumably they can render the requirement for a warrant moot by just deploying a Predator drone to track him.
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I think there are still some limitations in regards to deploying predator drones stateside, although Rick Perry wants them on the border. Conspiracy theorists (some) argue that the push to automate air traffic control is about making it easier to push hundreds or thousands of drones into air traffic while controlling or limiting citizen awareness of drone activity.
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I'm sort of with NoVA on the whole privacy issue and I'm about to say no to the scanners as well. I hate this kind of surveillance slippery slope and I don't even have anything to hide. What are the predictions re the SC here?
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Oh, and HI Dave.
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Dave! – glad you dropped by.mark
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LMS, read the short link in Mike's first comment. Kerr says this is worrying all of them immensely, they hate the "1984" aspect but must back track on prior cases if they are to rule this use unreasonable. And there are future possibilities to be considered. This is a HARD case. Read Kerr.
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Who is Dave!? I don't think we have met.
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Okiegirl, when the "Fix" google group began it had five Rs. Dave! was the last active R member before Kevin was recruited. Dave! went inactive, partly b/c of time constraints and partly b/c some of the liberals at that group were often as self righteous as some of the liberals at PL. Dave! remained in a subgroup with me, Mike, and bsimon, and sometimes BB. BB and I decided he would like this much more intellectually challenging, funnier, and more tolerant, and more diverse group and invited him to comment. If he likes it enough, he will ask to join so he can post as well as comment. Dave! lives near BB in metro DC.Dave!, is that accurate from your recollection?
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Thanks, Mark. That gives some perspective. And welcome, Dave! I'm a D in a swimmingly red state.Mark or others, do you know where 12BB has gone?
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Yes. Write me atMark.in.austin1@gmail.com and I will tell you what I know.
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Welcome, Dave! The water's quite, well, moderate around here!
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Mark, et al,Mark's summary is about right. To clarify a bit, I am male! I am in Northern VA (not a DC city person). My family has a black cat and when I was creating my avatar, that was the only usable pic I had available. I am not particularly fond of cats but as far as they go, this one is about as good as it gets. His name is Fritz. Yes – Fritz the cat.I still have a number of time constraints so i don't know just how regular I will be here. I like to comment from time to time in between my 3 kids activities and my community involvment and beating my kids into subm…on a side note, i can sometimes be fairly facetious without it actually coming across as such. This is a work in progress so if it sounds like I am being particularly harsh, it's probably not intentional. Ding me appropriately.And finally, what english word has all the vowels in their correct alphabetical order?
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Dave!Facetiously . . . you hinted in your comment. There is another: abstemiously. Sacrilegiously and adventitiously also have all the vowels in their correct alphabetical order (who ever says adventitiously?), but both contain a repeated i.
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If its legal for a cop to place a GPS device on a car without a warrant, is it legal for me to do so?
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