12 December 2011

SCOTUS to rule on warrantless GPS tracking

Photo courtesy of wired.com
GPS tracking devices like this one could redefine what constitutes a search.
By Mary O’Rourke, Juris Blogger
The United States Supreme Court recently heard oral argument on United States v. Jones, a Fourth Amendment case involving whether or not it is constitutional for the police to attach GPS tracking device on an individual’s automobile without a warrant. On October 24, 2005, Respondent Antoine Jones was arrested for drug possession after police had attached a GPS tracker to his Jeep without his consent and had used the information gathered from the GPS system to follow him for a month. The GPS monitor allowed the government to track the defendant’s movements every ten seconds for 28 days, which was ultimately used against him as evidence of a conspiracy at trial. The police had previously gained judicial approval via a warrant for use of the GPS, but the warrant had expired a day before the initial attachment of the device, making such attachment a warrantless intrusion under Fourth Amendment jurisprudence.

At trial, Jones was found not guilty of every charge but conspiracy, on which the jury hung. District Prosecutors re-filed the charge of conspiracy against Jones which ultimately resulted in a guilty verdict. On appeal to the U.S. Court of Appeals for the D.C. Circuit, the case was reversed and the police’s actions ruled unconstitutional with the Court finding that the use of the GPS system constituted an invalid search and seizure because the police acted without a valid warrant, and thus all evidence involving the GPS had to be suppressed as a matter of law.

At oral argument, the Government emphasized that once a car, or anything for that matter, enters the public arena, it loses all objective and subjective expectations of privacy and consequentially loses all Fourth Amendment protections. If this is true, as Chief Justice Roberts pointed out, the Government can legally place an instrument on any citizen’s automobile to monitor their location without a warrant at any time. Justice Breyer, alluding to the apparent Orwellian logic behind the Government’s argument, appeared concerned that the acceptance of such warrantless intrusions could result in the deterioration of a citizen’s reasonable expectation of privacy whenever they are in public. Justice Ginsburg, clearly bothered by the Government’s premises, reasoned that if the Government’s argument is accepted, a person is only protected by the Fourth Amendment when they are in their own home, which directly contradicts U.S. v. Katz, the leading and longstanding constitutional precedent that defines what constitutes a legitimate expectation of privacy. Katz declared that an act of the Government violated the Fourth Amendment where the police bugged a telephone booth occupied by the defendant without a warrant and used the evidence collected against him in a criminal trial.

Stephen Leckar, on behalf of Jones, argued that the warrantless use of a GPS tracker constitutes an unreasonable violation of privacy. Leckar conceded that the police lawfully could visually surveil a defendant without a warrant at any possible moment, but argued that the use of a GPS as attached to a vehicle is a physical invasion of a possessory interest (defendant’s automobile) and that such use of advanced technology is an inherent search and seizure.

The Justices’ seemed hesitant to accept the Government’s argument, seemingly because of the potential repercussions such an acceptance would have on Fourth Amendment jurisprudence. U.S. v. Jones will force the Court to address whether or not warrant requirements established before police departments utilized such technology are still valid in light of modern technical developments. Either way, the Supreme Court will have to decide whether or not citizens’ retain any sense of privacy the moment they walk outside their private residence and into the public sphere, inevitably broadening or restricting the rights guaranteed to American citizens under the U.S. Constitution.

Mary O'Rourke is currently a 2L at Duquense University. She is a Research Assistant at the Duquesne Center for Legal Information as well as a Legal Intern at the Allegheny County District Attorney's Office. Mary earned her undergraduate degree at Temple University in Philadelphia, PA, with a major in Criminal Justice and minor in Political Science. She will graduate from Duquesne Law School in 2013 and may be reached at marylorourke@gmail.com.