U.S. Supreme Court Case Raises Privacy Questions

Should police be able to place a GPS device on your car and track your movements without first obtaining a warrant?

That is the question that came before the United States Supreme Court recently, in United States v. Jones.

The Jones case came to the Court on appeal from a lower court decision that threw out the conviction of a drug dealer that argued that the police illegally placed a GPS tracking device on his vehicle without first getting a search warrant. The GPS device tracked the defendant's movements for a full month, 24 hours a day. The police, however, did not obtain a warrant before they put the tracking device on the vehicle because they believed that their action did not constitute a "search."

The Jones case presents the Court with a chance to discuss some of our most basic rights as citizens in the face of new technologies our founding fathers never imagined.

As a matter of Constitutional law, police must first obtain a warrant from a judge before subjecting a citizen to an unreasonable search or seizure. Before approving the search, the judge must consider the evidence gathered to date and the scope of the proposed search. If the judge determines that there is "probable cause" that the search will uncover evidence of a crime, the judge will issue the warrant.

When deciding whether a warrant is or is not required in a particular situation, courts look to whether the person being searched has a "reasonable expectation of privacy." To use a simple example, if a police officer saw a man walking down a public street toward a bank openly carrying a large machine gun while wearing a ski mask, the officer would not be required to go obtain a warrant before stopping and searching the suspect because the suspect would have no reasonable expectation of privacy in that circumstance. Conversely, if a man kept a machine gun in his basement, and went about his business without incident, he would have a reasonable expectation of privacy, and thus his basement could only be searched by police if they could show probable cause and first obtain a warrant.

Arguing before the High Court last week, the attorney for Jones contended that the allowing law enforcement officials to track vehicle movements would represent an outrageous expansion of governmental power and, therefore, amount to an unreasonable "search."

The government lawyer, however, argued that placing a tracking device on a vehicle does not constitute a "search" because the device simply records the movement of vehicles that otherwise would be observable on the streets. In other words, since the person driving the vehicle has "no reasonable expectation of privacy" as he or she drives from here to there on a public street, the person cannot complain about being tracked by police.

During oral argument, some members of the Court seemed troubled by the scope of what the government was contending.

Justice Stephen Breyer noted that if the government were to win the case, there would be nothing to prevent the police from monitoring the public movement of
every vehicle in the country. The government's attorney, however, noted that there is no reason for the Court to address that potential scenario now, since the practice of tracking suspect vehicles is not one commonly used by police.

Chief Justice John Roberts Jr. also raised concerns, suggesting that although the vehicle movements were on "public streets," the fact that the technology allowed for highly accurate tracking of individual movements on an indefinite basis might implicate the Constitution in some way. The government responded by reminding the Court that in prior cases, the Court held that it was not unreasonable for police to place "beeper" tracking devices in vehicles without a warrant. And no warrant is usually required for police to tail a suspect in a police vehicle. This case, the government contended, simply involved "tailing," albeit with more advanced technology.

Americans, by nature, value their privacy. The idea that police might be able to track their movements 24/7, without any judicial process at all, surely is troubling to many.

On the other hand, a GPS could be viewed as a mere substitute for the outdated police practice of tailing someone to monitor his or her activities – a practice perfectly legal under the law.

So what is the Court likely to do?

My sense is that the Court is likely to be split. Some pro-law enforcement justices likely will find that placing tracking devices on vehicles is not a "search" and thus, no warrant is required.

Other justices are likely to find the practice objectionable, although how they will circumvent prior Court precedent – especially the "beeper" case - remains to be seen.

Forced to make a prediction, I anticipate that a slim majority of the Court will uphold the practice in concept, but place some limitations, perhaps with regard to time (some sort of reasonableness test) that will likely result in more court proceedings in the future.