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Mark Rivera, Customer Retention Manager and CJIS Security Compliance Officer with Vigilant Solutions, served for sixteen years with the Maryland State Police, retiring at the rank of First Sergeant with thirteen of those years at the supervisory and command level. He holds a Master of Science Degree in Management from The Johns Hopkins University and Secret clearance through the FBI, Baltimore.

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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.

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