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| NEWS > 08 November 2011 |
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AUSTIN, Texas — The family of a man who died in a police shooting last month is suing the officer and the city of Austin, alleging wrongful death, racial injustice and excessive force.
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After-hour calls by The Associated Press to the city of Austin and the Austin Police Department were ... Read more
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NPR
08 November 2011
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Do Police Need Warrants For GPS Tracking Devices?
The U.S. Supreme Court, an institution steeped in tradition, steps into the turbulent
world of new technology Tuesday. At issue before the court is whether police
must get a warrant from a judge before they can attach a GPS tracking device to a
car so they can monitor a suspect's every movement for an indefinite period of
time.
The case could have enormous implications for privacy rights in the information
age.
Police, quite naturally, want to use new technology to get the goods on the bad
guys, and citizens, quite naturally, think that when they leave their homes, they still
have some zone of personal privacy in their cars. This case presents that clash in
vivid terms.
In 2004, a joint FBI-Washington, D.C., Metropolitan Police task force began
investigating suspected drug kingpin Antoine Jones. First they got a warrant and
wiretapped him, but Jones was careful about how he spoke on the phone. So then
they put a GPS tracking device on his car, and for 28 days, every time that car
moved, its location was tracked by satellite, with the information sent every 10
seconds to the FBI. The tracking led to Jones' arrest, plus the seizure of 97 kilos of
cocaine and $850,000 at a stash house. Jones was convicted of conspiracy to
distribute drugs, but a panel of conservative and liberal judges on the U.S. Court of
Appeals in Washington unanimously threw out the conviction because the tracking
device had been attached without a warrant. The court said that tracking a car for
such a long period without court authorization violates the Fourth Amendment's
ban on unreasonable searches.
The government appealed to the U.S. Supreme Court, contending that no warrant
is required when a car is on public roads. And the Supreme Court hears
arguments Tuesday in the case.
"It's critical to understand that this case is not about whether law enforcement can
use GPS devices. It's about whether they should get a warrant," says lawyer
Walter Dellinger, who represents Antoine Jones.
"If the Supreme Court gave a green light" to warrantless GPS tracking, he adds,
then "any officer can install any GPS device for any reason on anybody's car,
even if the officer thinks it would be interesting to know where Supreme Court
justices go at night when they leave the courthouse. No one would be immune
from having a GPS device installed on their vehicles."
The government, however, contends that the Fourth Amendment only bans
warrantless searches of private spaces, like the home, or the interior of a car, or a
locked office desk. And the Supreme Court has previously held that searches on
public streets — of trash put out for pickup, for instance — do not require a
warrant. In addition, the government asserts that the GPS device is just an
electronic extension of old-fashioned human surveillance.
Pat Rowan, a former federal prosecutor and assistant attorney general in the Bush
administration, supports that view. "There's no Fourth Amendment implication for
what a person is doing out in the public space, whether they're walking down the
street and being observed or whether they're driving down the street and being
observed," he says.
Rowan concedes that everyone has what he calls "an instinctive reaction" that
warrantless GPS tracking goes too far. But, he adds, "you are talking about a very
clear line that the Supreme Court has laid down over a very long time, that what
the police can observe in public, the individual doesn't have a reasonable
expectation of privacy in. And this is the functional equivalent of having the police
do a very effective covert surveillance of an individual over a long period of time."
Rowan does say as a practical matter that it would be next to impossible to
conduct surveillance for a month without being detected. That's why the GPS is a
game changer and, as Rowan puts it, a "terrific boon" for police.
So why not get a warrant first? Because to get a warrant, police have to show
they have probable cause to believe a crime is occurring or has occurred. And the
government says GPS tracking is particularly useful at the early stages of an
investigation — before probable cause can be established.
"You have a lead against a person, but it's not corroborated," says Rowan. "You
don't know what they're up to. This is a low-cost device that would allow the FBI
or any law enforcement agency to gather a great deal of information about their
movements without having to go to a judge and justify their investigation."
That's exactly the point, counters Dellinger, the defendant's lawyer.
"The government's position is that any law enforcement officer, in his completely
unfettered discretion, can choose to put this device on anyone's car and track
what medical appointments you go to, what religious groups you meet with, what
political activities you drive to. This is really an extraordinary undertaking and one
where the critical protection would be that a neutral magistrate would approve in
advance whether there is actually some probable cause to believe someone has
committed a crime before you install a GPS device," he says.
Dellinger has a second argument, not addressed by the appeals court, but that is
before the Supreme Court. The Fourth Amendment to the Constitution bans not only
unreasonable searches, but also seizures of a property. He argues that placing
the GPS device on the exterior of Jones' car interfered with Jones' right to exclude
others from using his car, and that planting the device constituted a trespass on
Jones' property.
That argument does appeal to former Assistant Attorney General Rowan, who
opines that "it just doesn't sound right" that there is no expectation of privacy
when a device is covertly affixed to a car.
Indeed, an unscientific sampling of prosecutors shows a real hesitation about how
far to push the envelope with GPS devices.
David Kelley, the former U.S. attorney in New York, who spent nearly 20 years as
a federal prosecutor, says he always assumed that a warrant was needed for a
long-term tracking device. "The four corners of the car is yours," he contends.
"And you have a reasonable expectation of privacy in that."
Kelley concedes that requiring a warrant will mean some bad guys get away.
"Tough luck," he says. "Go find another way to get the guy. And if you can't get
probable cause, you know what? Maybe you have no business getting into that
car to put in that device."
While today's case involves GPS devices, it could have enormous repercussions
for other devices in the information age. What about cameras that photograph
people on public streets? What about cellphones that can be tracked whenever
they are on?
Defense attorney Dellinger maintains those are different: The cameras are
stationary, and the cellphones can be turned off.
The Supreme Court is usually reluctant to rule boldly on matters of new
technology. It has learned, the hard way, that the reach of new technology is hard
to predict. In the 1920s, when law enforcement began wiretapping suspects, the
court ruled that no warrant was required.
Nearly four decades later, in 1967, the court overruled that decision and said a
warrant is required.
The court's only ruling on any sort of a car tracking device was in 1983. In that
case, the court approved the placement, without a warrant, of a beeper in a large
container that suspects put in their car. Police then followed the sound of the
beeper for a single day. The court, however, specifically left open the question of
whether any longer-term tracking device would require a warrant.
In recent years, the lower courts have split on the question.
In Washington, D.C., Judge Douglas Ginsburg, writing for a unanimous appeals
court panel, said a warrant was required in the Jones case because of its
intrusiveness. "A person who knows all of another's travels can deduce whether
he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful
husband, an outpatient receiving medical treatment, an associate of particular
individuals or political groups."
The likelihood that police could conduct such a monthlong, 24/7 surveillance by just
watching and following the suspect, he said, is "nil."
When the full nine-member appeals court declined to review the panel's decision,
Chief Judge David Sentelle dissented. "A person's reasonable expectation of
privacy while traveling on public highways is zero," he said, and "the sum of an
infinite number of zero-value parts is zero."
That dissenting view prevailed on the opposite coast when the Ninth Circuit Court
of Appeals, based in San Francisco, ruled that no warrant is required in GPS
cases. When the court declined to reconsider its ruling, Chief Judge Alex Kozinski,
a native of communist Romania who immigrated to the United States with his
parents in 1962 when he was 12, dissented. "There is something creepy and un-
American about such clandestine and underhanded behavior," he wrote of the
warrantless placing of GPS tracking devices. "To those of us who have lived
under a totalitarian regime, there is an eerie feeling of deja vu."
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