A few months ago, I wrote a column about a pending United States Supreme Court case involving whether it was permissible to use of GPS equipment to surreptitiously track suspects with a search warrant. In the case, law enforcement placed a GPS tracking device on the motor vehicle belonging to Antoine Jones, a nightclub owner in Washington, D.C., whom was a suspect in a drug trafficking investigation. Through the use of the GPS, law enforcement was able to track all of Jones’ movements with his motor vehicle, including his frequent trips to a residence in Maryland, which turned out to be a stash house, i.e., the place were Mr. Jones kept his drugs that he distributed.
There is no prohibition against the police tailing a suspect in public places as the suspect’s expectation to privacy was never violated. In other words, you do not have an expectation of privacy when you are driving around on public streets. The simple question was whether you could use GPS to accomplish the same thing that an undercover tail would do. During the oral arguments, Justice Breyer suggested that there was Orwellian about the use of GPS – and I noted my agreement with his assessment. I also noted that the “legal experts” were predicting that the Supreme Court would a llow the use of GPS tracking without a warrant. Well, the prognosticators were dead wrong as a unanimous Supreme Court (that means all 9 justices) decided that you need a search warrant to surreptitiously use a GPS system on a suspect’s motor vehicle.
Justice Scalia wrote the majority opinion which noted that attaching a GPS unit to a suspect’s car did constitute a “search” that violated the Fourth Amendment as it involved a trespass upon a person’s private property, i.e., the automobile, without consent from the owner. In the absence of consent, Justice Scalia indicated that a search warrant was necessary in order to permit law enforcement to surreptitiously attach the GPS device to the motor vehicle. Justice Scalia’s decision was narrowly tailored – only finding that the motor vehicle itself was private property and that the government needed consent or a warrant to trespass upon that private property.
Interestingly, one of the other conservatives on the court, Justice Alito, parted ways with Justice Scalia in a concurring opinion, and suggested that the opinion did not go far enough. Justice Alito, joined by justices Ginsburg, Breyer and Kagan, argued that more than property rights were violated. Alito argued that individual privacy rights were violated in that a person has a reasonable expectation of privacy that protected them generally from constant government surveillance without a search warrant. Alito advocated a more sweeping ruling that would have curtailed the use of advanced technologies to track private citizens for long periods of time without their consent. In response, Scalia simply noted that the present case did not require the Court to answer the broader question of the extent to which law enforcement can track private citizens with advanced technologies.
For now, law enforcement now knows that a search warrant is required to surreptitiously attach a GPS unit to a suspect’s motor vehicle. The extent to which law enforcement can utilize other non-invasive technologies to secretly track suspects will have to be determined in later cases. The question is a simple one: Do you have a reasonable expectation of privacy in what you do everyday in the public arena without fear of being constantly watched and tracked by the government with sophisticated technologies?
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(Published 27 January 2012)