TRI In The News

Supreme Court to Hear GPS Surveillance Case

November 07, 2011

From The Washington Examiner

It sounds a bit like Big Brother: Police can place a GPS device on your car to follow all of your movements, for any length of time.

The Supreme Court on Tuesday is scheduled to hear arguments about whether investigators need to get a warrant before doing so.

Legal experts say the case, which stems from a D.C. nightclub owner's conviction on drug charges, is one of the most important Fourth Amendment cases in decades, and will determine how police conduct investigations and privacy in the high-tech age.

Smile for the cameras

GPS devices aren't the only high-tech surveillance tools making waves. The District said earlier this year that it was planning to beef up its public surveillance system, adding thousands of security cameras to its citywide network; law enforcement officials are increasingly using such systems and a variety of other technological devices to monitor people.

That's why the Supreme Court's eventual decision in the GPS case could have far-reaching implications for privacy rights, said John Whitehead, a constitutional lawyer and president of the Charlottesville-based Rutherford Institute. In an amicus brief arguing that a warrant should be required for most GPS surveillance, the institute points to microelectromechanical sensors, Radio Frequency Identification chips, tracking chips in cell phones, facial-recognition software and iris scanners as other tools where security and privacy rights can be at odds.

"Waiting until this sort of surveillance technology is in use everywhere before setting limits on its use by police is imprudent," the brief says.

"No one believes that GPS surveillance by law enforcement is inappropriate," said John Verdi, senior counsel at the Electronic Privacy Information Center. "The question is: What is the standard that law enforcement will be held to? Is law enforcement simply permitted to track anyone, at any time, for no reason?"

The nightclub owner, Antoine Jones, was arrested on Oct. 24, 2005 on cocaine-distribution charges after police used a GPS device to track his vehicle for a month. He was convicted and sentenced to life in prison. D.C. police initially obtained a warrant for the GPS, but it expired. Now the government now argues it never needed one.

The U.S. Court of Appeals for the D.C. Circuit disagreed last year, holding that the extended GPS use violated Jones' "reasonable expectation" of privacy.

The court wrote that "prolonged GPS monitoring reveals an intimate picture of the subject's life that he expects no one to have -- short of perhaps his spouse."

Federal prosecutors contend that no warrant was necessary because Jones was freely traveling on public roads.

In a brief, Solicitor General Donald Verrilli Jr. told the Supreme Court that "any individual who moves on public roadways knows that his movements can be readily observed."

Verrilli also noted that "no evidence exists of widespread, suspicionless GPS monitoring, and practical considerations make that possibility remote."

Two other federal appeals courts have held that police don't need a warrant to install and monitor a GPS on a suspect's vehicle.

D.C. Police Union Chairman Kris Baumann said GPS monitoring lets officers track suspects' patterns and requiring a warrant harms investigations by causing delays.

"Following people in cars is something we've done for years," he said. "It simply allows us to use technology to do that."

The last time the Supreme Court took up a case involving Fourth Amendment searches, technology and travel was 1983, when the court held in United States v. Knotts that police could, without a warrant, use a beeper device to monitor suspects and people did not have a reasonable expectation of privacy while traveling on public streets.

But the Knotts opinion declines to address the type of 24-hour surveillance at issue in the Jones case, saying there will be "time enough" to rule on those issues.

Such 24-hour monitoring without a warrant is "a grave and novel threat to the personal privacy and security of individuals," Stephen Leckar, Jones' attorney, said in his brief.