Supreme Court to Consider Whether GPS Tracking a “Search” Requiring Warrant

Anyone else following the new search and seizure Fourth Amendment case pending before the U.S. Supreme Court?  The Justice Department’s petition for writ sounds like something straight out of The Wire and has set the legal industry abuzz.

This case may sound like legal nerd stuff, but I assure you that unlike a lot of the corporate nonsense cases that the court has been entertaining as of late, the outcome of United States of America v. Antoine Jones could have some really board implications on how the police and other law enforcement agencies monitor and track criminal suspects.

The case in question was decided last year by a D.C. Circuit Court.  The defendant, Jones, was arrested and charged with drug trafficking by the police.  The cops suspected Jones was a narcotics distributor and placed an electronic GPS tracking device on his car.  Using satellite technology, the police were able to follow Jones’s movement about town and collect enough evidence against him to charge him.

The problem was that the cops did this without a warrant and when prosecutors tried to put Jones away, Jones raised a Fourth Amendment defense claiming that the GPS tracking device was tantamount to an illegal search and seizure of his car.  Jones faced a life sentence for his alleged crime, but the circuit court agreed with Jones’s argument and vacated his sentence.

Under the exclusionary rule, any evidence gathered that stemmed from an unconstitutional act (in this case the police’s alleged illegal search and seizure) must be excluded.   Therefore, Jones was able to escape the slammer.  Cops and prosecutors didn’t like this though, as they argued that GPS monitoring technology is an essential method of criminal investigation and that requiring cops to get warrants beforehand would unduely burden law enforcement tactics.

The topic of police GPS monitoring is one that’s ripe for litigation.  It’s one of the most divisive areas of criminal law today as many different state and federal courts have ruled differently on the subject, some for and some against and many with different exception to when and when it can’t be used.  Complicating matters further is the fact that almost every law enforcement agency today possesses this satellite tracking technology and are continuing to use it to help gather evidence for the prosecution of suspects.  That’s why the Justice Department has finally stepped in and asked the Supreme Court to intervene and finally settle this issue once and for all.

How will the court come out?  Who knows?  There are certainly sound legal and public policy arguments on both sides of the debate.  However, from my perspective it’s hard to deny that GPS tracking using is anything less than a violation of the Fourth Amendment.

I say this so definitively for one simple reason: the electronic tracking device.  Under US v. Karo, a seizure of one’s property occurs once police attach anything to the property that meaningfully interferes with the property’s use.  The facts in Karo are almost exactly the same as in Jones’s case.  There, cops had planted an electronic beeper in barrels that they suspected were being used to transport cocaine.  The Supreme Court struck this down clearly as unconstitutional.

Therefore, the GPS tracking device here is in and itself a search and seizure because it must be implanted onto a car or person in order to perform its function, which is to track a suspect’s whereabouts.  That’s restricting a person’s use of their property if I ever heard of one.  Not to mention that commercial tracking devices like the ones the police use probably aren’t as readily available to the public since they probably are special government issued devices.  Kyllo v. US states this as one of the factors that when present, implicate the Fourth amendment protections.

But what of the government’s argument that it’s not a search because they are only tracking his car from the public street.  The government relies heavily on Florida v. Riley, which stated that a helicopter in public airspace could track a suspect traveling on a public road because it didn’t meaningfully interfere with the suspect’s person or property.  Essentially, that this was equal to watching the same suspect in a stakeout ala The Wire.

However, the government’s argument falls apart because of the tracking device, which, again, must be implanted onto a suspect’s car.  This interferes with the suspect’s use of their car and furthermore, once the suspect takes their car into their garage, the device would then be inside private property and not on public roads anymore.

However, it will nonetheless be interesting to see how the Supreme Court comes down on this one.  Who knows?  Maybe they’ll pull another Citizens United and make another bonehead move with are civil liberties.

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