9/18/2011

By Naomi Birbach, J.D. Candidate

In November, the Supreme Court will hear arguments in United States v. Jones, No. 10-1259, which asks whether police need a warrant to attach a GPS device to a criminal suspect’s vehicle and track its movements over time.

The case is an appeal from United States v. Maynard, 615 F.3d 544, 558–59 (D.C. Cir. 2010). Antoine Jones, the owner of “Levels” nightclub in Washington, D.C., was suspected of being part of a cocaine-selling operation. Id.at 549. Prosecutors obtained a warrant to place a GPS tracking device on Mr. Jones’s Jeep Grand Cherokee, butthe warrant required them to do so within 10 days of its issuance in the District of Columbia. The police installed the GPS device eleven days later in Maryland. They maintained that no warrant was necessary and tracked Mr. Jones’ movements twenty-four hours a day for four weeks. 615 F.3d at 555. Using the evidence obtained from the GPS tracking, Mr. Jones was convicted of conspiring to sell cocaine and sentenced to life in prison. Id. at 549.

The central case on this issue is United States v. Knotts, 460 U.S. 276 (1983). In Knotts, officers installed a beeper in a drum of chloroform and monitored the car carrying the drum for a single 100-mile trip from its place of purchase to a cabin using both visual surveillance and signals from the beeper. Id. at 277–80. The Court explained that “the application of the Fourth Amendment depends on whether the person invoking its protection can claim a justifiable, a reasonable, or a legitimate expectation of privacy that has been invaded by government action.” Id. at 280–81. It upheld the officers’ use of the beeper to track the suspect because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Id. at 281. At the same time, the Court noted that, “if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.” Id. at 284. This passage will likely set the stage for the upcoming Supreme Court arguments, as the time has clearly come to determine what constitutional principles may be applicable to technological innovations of the current era.

Some circuit courts have relied on Knotts to uphold warrantless police tracking of criminal suspects with GPS devices. In United States v. Pineda-Moreno, 591 F.3d 1212, 1213 (9th Cir. 2010), agents attached mobile tracking devices on the underside of the defendant’s car and continuously monitored the vehicle’s movements for four months. The Ninth Circuit, following Knotts, held the monitoring permissible because the information from the tracking devices could have been obtained by following the car.Id. at 1216–17. Similarly, inUnited States v. Garcia, 474 F.3d 994 (7th Cir. 2007), police placed a GPS device under the defendant suspect’s car bumper after receiving tips that the defendant, who previously served time for methamphetamine offenses, was manufacturing methamphetamine again. The Seventh Circuit held that the placement of the GPS device underneath defendant’s vehicle did not constitute a Fourth Amendment search.  It rationalized that GPS devices are similar to surveillance cameras and satellite imaging, which are not “searches,” and that GPS is substitute for the activity of following the car on public street, which likewise does not constitute a search. Id. at 997–98.

However, in Maynard, the D.C. Circuit did not follow Knotts.  It asserted that the Knotts court expressly reserved the question of twenty-four hour surveillance. The D.C. Circuit similarly interpreted the Fourth Amendment expectation of privacy to be reasonable when it relates to information that one would not expect to be exposed to the public. 615 F.3d at 558–59. However, the court found that the prolonged GPS surveillance of Mr. Jones revealed a totality of his movements that is not otherwise exposed to the public because there is no chance that a member of the public would observe all of these movements. Id. at 558–60. Moreover, prolonged GPS monitoring reveals an intimate picture of a suspect’s life that a reasonable person would not expect to be exposed to the public. Id. at 560–63. As the court explained, “[a] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there.” Id. at 563.

For many of us, the idea of warrantless GPS tracking of our every move is a shocking violation of privacy. At the same time, there are likely some people who feel safer in a society where all reasonable means are taken to obtain evidence to convict criminals of unlawful behavior, even at a cost to personal privacy. In a recent N.Y. Times editorial, George Washington University Law School Professor Jeffrey Rosen warned that not only is warrantless GPS tracking at stake, but also online and video surveillance. We live in a world where our innocent movements are being tracked more than we think. For example, security cameras are everywhere. What if Google began to post live feed from security cameras online? For these reasons, the outcome of United States v. Jonesnot only will affect criminal suspects, but also has the potential to impact all of us. It will be extremely interesting to see how the current Supreme Court comes out on this critical Fourth Amendment issue.