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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

The Court of Appeals ordered suppression of evidence gained from the GPS surveillance, and the government appealed to the U.S. Supreme Court. Affirming the suppression order and the reversal of Jones's convictions, the Supreme Court has now held that the installation and monitoring of the GPS device constituted a Fourth Amendment "search." Absent a showing of a valid warrant or some recognized exception to justify this search, the evidence was properly suppressed, in the court's unanimous judgment (all nine justices agreed, in three separate opinions).

Here are salient passages from the majority opinion, written by Justice Antonin Scalia, who based his conclusions on the idea that a physical "trespass" (entry) by police that invades the "person, houses, papers and effects" covered by the Fourth Amendment (including vehicles), combined with an attempt to get information or to look for something, is a "search:"

"We hold that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search,' Where, as here, the government obtains information by physically intruding on a constitutionally protected area, a search has undoubtedly occurred.

"Trespass alone does not qualify [as a search], but there must be conjoined with that what was present here: an attempt to find something or to obtain information. A trespass is not alone a search unless it is done to obtain information; and the obtaining of information is not alone a search unless it is achieved by such a trespass or invasion of privacy."

Although condemning the use of the GPS tracking in Jones, the court opined that if police had instead tracked Jones's movements by means of "mere visual observation," using "a large team of agents, multiple vehicles, and perhaps aerial assistance, our cases suggest that such visual observation is constitutionally permissible." In other words, it was the money-saving, manpower-saving, efficient use of technology to obtain the exact same information that rendered the surveillance of Jones unconstitutional. Go figure.

What Jones Said

The majority opinion in Jones said that when there is a physical intrusion by officials into the persons, houses, papers or effects of a suspect, coupled with an attempt to find something or gain information, a Fourth Amendment "search" occurs. This means that physical intrusion for other purposes does not necessarily constitute a search. It also means that getting information without physically invading the protected areas does not necessarily constitute a search. Both couplets must be present to invoke the Jones holding.

What Jones Did Not Say

Contrary to what much of the popular media have reported, the Jones decision did not say that a search warrant was necessarily required for GPS tracking. Under the basic Fourth Amendment rules, a warrantless search may be reasonable under a number of exceptions. For example, if a co-owner of a vehicle consents to GPS installation and tracking, the search would be reasonable. Vehicles belonging to persons on probation or parole search terms could presumably be tracked by GPS without a warrant. Likewise, your installation of a tracker on a bait car driven away by a thief would not violate the thief's constitutional rights.

However, in the absence of a recognized basis for a warrantless search, Jones does mean that a warrant must be obtained for installation and monitoring of a GPS tracker on a suspect's vehicle. Technology marches on, and criminals use it aggressively to great advantage, but law enforcement officers must use it cautiously, and sometimes only with judicial permission.

Devallis Rutledge is a former police officer and veteran prosecutor who currently serves as special counsel to the Los Angeles County district attorney. He is the author of 12 books, including "Investigative Constitutional Law."


SCOTUS: Police GPS Trackers Require Warrant

Surveillance Technology: An End to Stakeouts?

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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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