GPS Tracking Limits
Print Issue: March 2012
THE U.S. SUPREME COURT has ruled (United States v. Jones) that law enforcement needs a warrant to track suspects with a GPS device. The case involved a Washington, D.C., nightclub owner named Antoine Jones who claimed that the FBI’s attachment of a GPS device to his car constituted unwarranted search and seizure and violated the Fourth Amendment because there was no proper warrant obtained.
In 2004, the decision explains, Jones was being surveilled by the FBI and local police because he was suspected of trafficking in narcotics. Law enforcement sought and obtained a warrant to put an electronic tracking device on his Jeep within 10 days in the District of Columbia. When the device was attached, it was done outside of the district and one day after the 10 days had expired. It was used for 28 days. The information gathered led to a multi-count indictment. Jones filed to suppress the evidence. The district court suppressed information gathered when the car was parked in front of his residence but not when he was on public thoroughfares, based on a lack of privacy expectation there. Jones was ultimately convicted.
The government’s lawyers argued that, because Jones’s car was in a public place, no unlawful search occurred. The Justice Department states in its brief on the case that the Supreme Court’s 1983 decision in United States v. Knotts, which allowed warrantless radio tracking on public highways, should apply to the GPS tracking as well. The brief stated: “The tracking device in that case—a beeper—enabled officers to maintain surveillance of the vehicle’s movements when visual observations failed. But the court made clear that its use did not constitute a search. A person ‘traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.’”
The government also stated that the privacy interests in Jones’s case are absent or minimal and, thus, no warrant should be required.
The U.S. Court of Appeals did not agree with the government’s argument. It reversed Jones’s conviction.
A recent report released by a bipartisan committee assembled by the Constitution Project stated that law enforcement should be required to have a warrant in situations such as this. The Constitution Project’s Sharon Bradford Franklin told Security Management that civil rights activists fear that if Jones lost his case and the court found that the Fourth Amendment did not apply to this kind of pervasive electronic tracking with very sophisticated technology, “then there are no limits and no rules, and law enforcement can track anyone anywhere as long as they’re not inside an individual home.”
That argument came up in the oral argument. Chief Justice John Roberts asked the government attorney, “You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?” The lawyer replied affirmatively.
Franklin says Knotts and Jones should not be compared. Knotts was a single trip, whereas Jones is pervasive tracking where the data collected is “going straight to a digital database for pattern analysis, and you can really tell a lot about someone’s life, even if you’re just tracking their movements on a public road.”
Franklin and others also point out that the nature and ubiquity of GPS tracking make it a very attractive tool for law enforcement, whereas if the officers were actually tracking people physically, that would be much more difficult to continue. It is “very inexpensive and readily available for law enforcement to use these devices, and if the tool is there without limits, then they’re going to want to use it. And it’s subject to abuse and certainly in terms of invading what most of us think of as a reasonable expectation of privacy, it raises a lot of concerns,” says Franklin.
The Supreme Court noted in its ruling that mere visual observation does not constitute a search—meaning they could have physically tailed Jones’s Jeep legally, but “by attaching the device to the Jeep, officers encroached on a protected area.”
The Court did note, however, that it did not address the argument that even if the GPS constituted a search, it was legal because it was based on reasonable suspicion. It said that the government only made that case on appeal, not in the lower courts, so the Court considered the argument forfeited. That leaves open the possibility that some warrantless use of GPS with reasonable suspicion could pass muster in the future, but it would be a risky road for law enforcement to rest a case on.
Seven states had already passed laws requiring warrants for GPS tracking. The Supreme Court decision now establishes that as the legal precedent in all 50 states.