Washington Watch

BruCe Moyer

Is Warrantless GPS Surveillance Constitutional?

echnology often races ahead of the law, at times requiring the courts to try to catch up. That is what is happening in a highly anticipated case before the U.S. Supreme Court: testing whether warrantless police use of a widespread technology violates the expectation of privacy. The technology at issue is a Global Positioning System, or GPS, device. How many of us havent used GPS in our cars to help get us to a destination? GPS technology uses electronic signals and satellites to identify where our car is located relative to our surroundings. It also can be used in police surveillance, permitting authorities to effortlessly and continuously track a suspects car and its whereabouts. In that context, the Supreme Court is probing whether the Fourth Amendment is violated when police install a hidden GPS tracking device on a suspects car without his permission and use the device without a search warrant to track the suspect over an extended period of time. The case is United States v. Antoine Jones (No. 10-1259). Jones was a drug dealer in the District of Columbia whose movements were secretly tracked by the police without a warrant for nearly a month with a GPS device hidden under his car. The GPS device ultimately led the police to a location where they found a huge stash of cocaine and cash. Jones ultimately was convicted and sentenced to life imprisonment, then appealed that verdict, challenging the warrantless use of a GPS device that led to his conviction. On appeal, the D.C. Circuit Court of Appeals overturned Jones conviction, concluding that the prolonged use of the GPS tracking device without a search warrant violated the Fourth Amendment. It ruled that the GPS tracking efforts intruded on Jones expectation of privacy and constituted an impermissible search by police when undertaken without a warrant. Applying the principle laid down by the Supreme Court in the landmark Katz decision in 1967that the Fourth Amendment protects people, not placesthe circuit court concluded that Jones had a reasonable expectation of privacy in his car, especially over a prolonged period, and that the police had overstepped the bounds of the law in tracking him without a warrant. But in a digital era of ubiquitous mobile devices, when surveillance cameras and social media are increasingly opening our lives to ongoing public view, are our expectations of privacy less today than they were decades ago? Or is there still a remnant expecta-

tion of privacy, even when our movements still occur in plain view? That is the core issue before the Supreme Court in Jones. As Lyle Denniston, a SCOTUSBlog commentator, has written, Over the years, the Court has been quite willing to accept that there is an expectation of privacy when the police want to monitor something that is going on inside a home or even inside such a private place as a telephone booth when the caller has closed the door to the rest of the world. It has been decidedly less willing to acknowledge a claim of privacy when it occurs out in the openand it usually has treated being in a car or truck as being out in the open. That is why the Supreme Court in 1983 in U.S. v. Knotts permitted the police to use a secretly hidden radio transmitter without a warrant to monitor a suspect that led them to a location used by the suspect to manufacture illegal drugs. Sound familiar? Yes, the fact pattern in Knotts is eerily similar to the pattern in Jones in many respects. The warrantless surveillance at issue in Knotts was legitimate, the Supreme Court said, because it was equivalent to what the police could have accomplished the old-fashioned way by following the suspects car on public roads with their own eyes. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, the Court declared in Knotts. In fact, several appellate courts have used Knotts to uphold GPS surveillance technology to track suspects on public streets and highways. But the D.C. Circuit court in Jones distinguished that case from Knotts, pointing to the use of a tracking device in Knotts on one specific trip, compared to the ongoing monitoring of the suspect involved in Jones. Prolonged monitoring is much more intrusive of privacy, because it creates an extensive log of a persons behavior, the circuit court said. This collecting of increasing and massive amounts of data about our livesand the Orwellian portents of future technologies yet to be inventedmay be the driver that causes the Supreme Court to pause and place limits on police surveillance using potentially intrusive technology. TFL Bruce Moyer is government relations counsel for the FBA. 2012 Bruce Moyer. All rights reserved.

8 | The Federal Lawyer | January/February 2012