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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."

Related:

SCOTUS: Police GPS Trackers Require Warrant

Surveillance Technology: An End to Stakeouts?

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