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Departments : Point of Law

New Restrictions on GPS Tracking

The Supreme Court has further tightened the reins on electronic surveillance.

March 05, 2012  |  by Devallis Rutledge - Also by this author

Photo: Mark W. Clark
Photo: Mark W. Clark

In the old days, the only way to keep tabs on a suspect was to park outside his house "on stakeout," and then try to follow him without his knowing you were on his tail. This kind of surveillance was labor-intensive, time-consuming, costly, and risky. With the advent of satellite telemetry, it became possible to track the movements of suspects accurately, continuously and inexpensively, without risk of being detected or alerting the suspect that he's being watched. You simply slapped a tracker onto the undercarriage of his car while he was parked somewhere, and watched a screen back at the station. Technology—good for the good guys, bad for the bad guys, right?

But the Supreme Court has shown a distrust of law enforcement's embrace of technology to enhance crime-fighting efficiency. For example, in Katz v. U.S. in 1967, the court ruled that police violated the Fourth Amendment by using a wiretap on a public phone booth to intercept a bookie's calls. Said the court, "The Government's activities in electronically listening to and recording the defendant's words violated [his privacy]." It would have been permissible for an officer to stand nearby and overhear Katz's conversations, but the more efficient wiretap was not allowed.

In U.S. v. Karo in 1984, a beeper case, the court worried about the prospect of "indiscriminate monitoring by electronic device." Indiscriminate monitoring by simply following a suspect around on public streets in a police car would be permissible, but electrons somehow engage the Fourth Amendment.

In Kyllo v. U.S. in 2001, the court rejected an officer's use of a thermovision imager to measure the radiant heat in the air outside a grow house. Why? Because officers had enhanced their human senses with technology: "Obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion constitutes a search." And police use of technological devices "not in general public use," Justice Scalia wrote for the court, makes the search unreasonable. (Apparently, Justice Scalia had not seen the frequent Cadillac commercials showing that a thermo-imager in the car's grille could show Bambi darting in front of a nighttime driver.)

And in Ontario v. Quon in 2010, the court's decision said that "The court must proceed with care when considering communications made on electronic equipment" because of "rapid changes in the dynamics of communication and information transmission." Clearly, police use of technology to catch criminals makes the Supreme Court nervous. This brings us to 2012 and the recent decision on GPS tracking.

Jones v. U.S.

Antoine Jones, described in the Supreme Court's opinion merely as the "owner and operator of a nightclub in the District of Columbia," was actually charged with and convicted of possessing and conspiring to distribute 97 kilos of cocaine and one kilo of cocaine base; cash totaling $850,000 was found in his stash house (all of which would seem to make him a major narcotics trafficker-not simply a local businessman). But never mind Jones's crimes-let's just focus on whether the police unfairly used technology to catch him.

Task force officers applied for and obtained a search warrant authorizing the installation of a global positioning satellite tracking device on Jones's Jeep. The warrant carried a 10-day limit for installation within the District of Columbia; instead, the device was attached 11 days later, when the Jeep was parked in a Maryland parking lot. Jones's movements were monitored by GPS surveillance for 28 days. Evidence gained from the tracking was used to support his conviction for which, in light of his lengthy record, he received a sentence of life imprisonment. Jones appealed.

Comments (7)

Displaying 1 - 7 of 7

MsDeb @ 3/4/2012 6:20 AM

I dont understand how so much can be excepted as legal when it comes to an individuals right to privacy. Sometimes officers go beyond their grounds to catch criminals or those that have not been proven as a criminal but are marked already because of the behavior coming from officers, our protectors....ha ha peace officers are not always innocent.

dirkde @ 3/5/2012 3:49 PM

This issue is easily remedied. If you're involved in an investigation and one of the tools, such as GPS, may be considered, just sit down, pound out an affidavit and seek a tracker warrant. You can even seek authorization to enter on to private property in order to install, maintain and later remove it. If the affidavit in support of the warrant is full and frank and a Judge issues it, you are off to the races. Sadly, a lot of these court judgments are caused by carelessness or laziness on our part and they end up negatively affecting LEOs nationally and, sometimes, internationally. If in doubt, ALWAYS get a warrant. It can often save you from a lost case, embarrassment and potential criminal and or civil liability. Just my two cents worth, having been there and done that...great and very timely article.

John @ 3/6/2012 7:06 PM

Lets not forget that there is a vast chasm between legality and The Moral Law, something that Devallis should know quite well. Property rights start with your ownership of thought and conscience...which is why patents and documents are protected...and then moves on to other forms of property right...fixed and mobile. When stripped of all the 'anti-terror', 'anti-cartel', 'anti-whateverwecancomeupwithnext' gloss and diversion...the only salient issue remaining is - Personal Liberty and Freedom of Conscience vs. Divine Right. If someone is a criminal, prove it at first blush to a judge by getting a warrant, and then to a jury beyond reasonable doubt by doing real work under all the old restraints. Work is never 'easy', nor is maintaining a Republic when 'the nobility' think they've won the day.

TripWire @ 3/8/2012 9:21 PM

I would have to disagree with the authors position. Privacy and freedom from unreasonable searches is still an inherent right and just because we can monitor everything people do doesn't necessarily mean we should. If there is enough evidence a judge will grant the warrant for electronic surviellance. This may take extra resources but it also might just keep this new technology from being abused, which I'm sure nobody wants.

Ima Leprechaun @ 3/8/2012 11:20 PM

GPS tracking should have the same requirements as a wire tap. They should only be done by court order. Their use without a court order is an extreme violation of the 4th amendment. If they truly have probable cause a court order is a simple procedure. With no probable cause the Police should be forbidden to GPS any car. This is our basic right in a free society to come and go as we please.

Dan Birdsley @ 3/9/2012 7:07 AM

If any of you had ever spent a moment on the other side of a badge, you may feel a little differently.

Dodge City @ 3/10/2012 1:31 PM

@Dan, that's why we have a judicial branch to ensure separation of duties.

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