The Supreme Court on Tuesday voiced skepticism about arguments from the Justice Department in favor of allowing police officers to attach GPS devices to suspects’ cars without a warrant in order to track them remotely, but has yet to rule on the matter.
When it does though, the court will be offering an important clarification of the Fourth Amendment right to be protected against unlawful search and seizure in the information age, and will effectively set precedent as GPS and other remote-tracking technology becomes more widespread and cheaper and find their way into the caches of more and more law enforcement agencies.
And there was no mistaking the fact that justices were sufficiently alarmed and troubled by the prospect of having a police officer enjoy Constitutional protection to attach a GPS to the undercarriage of a suspect’s car without the suspect’s knowledge or permission, and without knowledge or permission from a judge, as was the case back in September 2005, when officers from Washington D.C.’s Metropolitan Police Department put a GPS on a Jeep Grand Cherokee belonging to D.C. nightclub owner Antoine Jones while the vehicle was parked in a public lot in Maryland.
“If you win this case, there is nothing preventing you from monitoring the movements of every citizen of the United States 24 hours a day,” said Justice Stephen Breyer to the Justice Department lawyers, AFP reported. “If you win, you produce something that sounds like ‘1984.’”
“What would a democratic society look like if a large number of people did think that the government was tracking their every movement over long periods of time?” posed Breyer.
“Better that the Court should address the so-called 1984 scenarios if they come to pass rather than using this case as a vehicle for doing so,” said the government’s attorney, Michael Dreeben.
Dreeben attempted to argue that “perhaps GPS can be portrayed as a 1984-type invasion, but as people use GPS in their lives and for other purposes, our expectations of privacy surrounding our location may also change,” and also that “technological advances can make the police more efficient at what they do,” lumping GPS in with “cameras, airplanes and beepers.”
A related aside: Equating GPS with “1984” has become something of a trend in courtrooms across the country, as the New York Times reported in September.
Meanwhile, defense attorney Stephen Leckar didn’t necessarily do a great job of persuading the judge of his client’s case, either. As Forbes’ Kashmir Hill put it “it was a little like watching 9 cats play with an injured mouse that they felt pity for,” with Leckar slipping and saying that a license plate was the property of the state and police could thus attach a GPS to it without violation of the Fourth Amendment, although Justice Scalia pointed out that “I paid for my license plate.”
The defendant, Jones, was arrested on cocaine possession charges in October of the same year, using evidence obtained from the D.C. officers’ GPS tracking, and convicted in a Washington District Court in January 2008 of conspiracy to distribute cocaine, receiving a life sentence. The conviction was later overturned when Jones successfully appealed to the U.S. Court of Appeals for D.C..
In its August 2010 ruling, the three-judge panel’s opinion was voiced by Justice Douglas Ginsburg, who wrote: “It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.”
Actually, in Jones’ case, police officers had obtained a warrant, but installed the GPS one day after the warrant expired and out of the District of Columbia boundary that had been granted, the Michigan Telecommunications and Technology Law Review notes.
But the appeals court took that into consideration, with Ginsburg writing: “because the police installed the GPS device on Jones’s vehicle without a valid warrant, the Government argues the resulting search can be upheld as a reasonable application of the automobile exception to the warrant requirement.”
The “automobile exception” refers to a series of decisions, beginning with Carroll vs. United States (1925) that have gradually come to allow police officers to conduct searches on automobiles without a warrant by referencing “probable cause,” the reasonable belief that someone might have been involved in a crime.
Interestingly, not all states have adopted the automobile exception: New Hampshire, for one, doesn’t permit any warrantless searches outside of a narrowly defined set of extenuating circumstances, according to the Law Library.
But in arguing against the appeal, the Justice Department dredged up the ruling in a 1996 case, Pennsylvania v. Labron, in which the Supreme Court held that “―[i]f a car is readily mobile and probable cause exists to believe it contains contraband, the Fourth Amendment … permits police to search the vehicle without more,” saying that people have a reduced expectation of privacy in automobiles.
A 1983 Supreme Court case, United States vs. Knotts, also upheld the right of police officers to track suspects in automobiles via beeper (pager) signals, and in that particular case, it was police who planted the beeper on the suspects without their knowledge, with an undercover officer selling a suspect a drum of chloroform with the beeper contained inside of it.
Even though the use of a GPS device to track suspects without a warrant has yet to be decided, the Justice Department admitted to the court that many law enforcement agencies around the country are already using the automobile exemption and the Knotts decision to conduct their own GPS surveillance on suspects, and that “thousands” of GPS devices are being used for this purpose.
Wired has compiled a list of numerous incidents aside from the Jones case over the past five years in which people have discovered GPS devices placed on their cars without their knowledge. Perhaps the most well-known instance concerns 20-year-old California student Yasir Afifi, who discovered a GPS tracking device on his car in October 2010 only to have the FBI show up at his house and demand he turn it over to them. He is now suing the government for violating his civil rights.
And as Wired also points out, the number of private companies manufacturing smaller and smaller GPS trackers has exploded to cater to the increased demand of law enforcement organizations and others who would seek to tail people.
So it’s little wonder that a number of civil liberties and electronic privacy activist organizations, including the ACLU and the Electronic Privacy Information Center, have filed briefs urging the Supreme Court to uphold the Appeals Court ruling, far outnumbering the briefs filed to support the government’s appeal.
Even the so-called “father” of GPS technology, Roger L. Easton, has come out against the use of his invention for warrantless law enforcement tracking, as the Electronic Frontier Foundation noted.
Still, the final word on whether cops can tail you using GPS is ultimately up to the Supreme Court. We’ll update when their ruling has been announced. Stay tuned.