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June 28, 2011

Supreme Court to Decide GPS Case

3585353332_4c6e5e4410_m The Supreme Court on Monday agreed to decide whether the warrantless use of a GPS tracking device on a defendant’s vehicle to monitor its movements on public streets violated the Fourth Amendment.  The case is United States v. Jones, Supreme Court Docket No. 10-1259. The D.C. Circuit had previously held that the use of a GPS tracking device without a warrant violated the Fourth Amendment.

In this case, the defendant was under investigation for suspected drug offenses. As part of the investigation, officers installed a GPS device on his vehicle and tracked his movements for four weeks.

The case turns on an interpretation of a couple on 1983 decision dealing with a primitive tracking device.  In United States v. Knotts, 468 U.S. 276 (1983), the defendant and his co-conspirators were suspected of manufacturing methamphetamine. Law enforcement officers contacted the chemical company where the conspirators intended to purchase chemical supplies. With the consent of the chemical company, officers installed a tracking device inside a five-gallon drum of chemicals. When Knotts’ co-defendant purchased the drum of chemicals, the officers were able to follow his car and eventually discovered a drug laboratory. 

The Supreme Court upheld the warrantless use of the tracking device. The court reasoned that no reasonable privacy interest exists in the movement of a vehicle traveling on a public roadway because drivers voluntarily convey to the public their location and direction of travel. The key premise to the analysis of Knotts is that persons "have no legitimate expectation of privacy in their location if they could lawfully be viewed by law enforcement." 

The court explained: 'Visual surveillance from public places . . . would have sufficed to reveal all of these facts to the police. The fact that the officers in this case relied not only on visual surveillance, but on the use of the beeper to signal the presence of [the] automobile to the police receiver, does not alter the situation. Nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.' "

The Knotts decision was not intended to be unlimited, however. The defendant argued that permitting the use of electronic tracking devices would inevitably lead to 24-hour surveillance of any citizen without a warrant. The court reserved that issue, saying, in response, “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.”

Based on Knotts, federal courts considering the question of GPS monitoring have universally permitted the placement and use of the devices on vehicles parked and traveling on public streets.  On the appellate level, for example, the Seventh, Eighth, and Ninth Circuits have explicitly permitted law enforcement to use GPS tracking on vehicles without a warrant. United States v. Garcia, 474 F.3d 994 (7th Cir. 2007); United States v. Pineda-Moreno, 591 F.3d 1212, 1216 (9th Cir. 2010); United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010).

However, in the case coming before the Supreme Court, the D.C. Circuit took a different approach. The court concluded that people have a reasonable expectation of privacy in the totality of their movements over the course of a period of time and distinguished the core holding of Knotts —  that people have has no expectation of privacy in movements that are exposed to the public  — on the grounds that “the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.”

It is always dangerous to predict a Supreme Court decision. However, the Supreme Court has, at times, been skeptical of police use of emerging technology that seems to stretch the boundaries of traditional Fourth amendment doctrines. In Kyllo v. United States, 533 U.S. 27 (2001), for example, the court prohibited police from using thermal imagers to view the inside of homes without a warrant. In Kyllo, the court appeared concerned with protecting the privacy rights of individuals from wide spread police surveillance.

I have expressed my thoughts on the Fourth Amendment implications of GPS devices in a law review article here and a LTN article here.  The key difference between Knotts and the GPS devices, in my view, is that GPS devices permit law enforcement to conduct surveillance beyond a targeted investigation into a certain crime. Instead, the devices could permit law enforcement to undertake surveillance of a particular individual over an extended period of time in the hope of piecing together evidence of illegal conduct, including evidence of illegal conduct that was not even suspected prior to the surveillance. I expect the Supreme Court to decide that because the use of GPS devices infringes on a legitimate expectation of privacy, their use constitutes a search requiring a warrant.

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