Should a Warrant Be Required for GPS Monitoring of a Suspect?

Today’s New York Times had an interesting editorial about a case involving the Fourth Amendment and whether technical advances can obviate Fourth Amendment privacy interests. The question presented was whether police police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The New York Times believes that that a warrant should be required.

Antoine Jones was charged with being part of an interstate drug conspiracy. To gather evidence against Mr. Jones, federal officials covertly attached a GPS device to his car. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. To the Government’s credit, the agents did obtain an order to attach the device, but apparently there were defects in the application for the order or the order itself. The Government has taken the position that no order was required whatsoever.

The Supreme Court has not considered the question of whether the police need a court order to install a GPS device. The government has tried to draw an analogy to a 1983 case in which the court ruled that the police do not need a warrant to use a radio beeper to track a vehicle on public roads, but the circumstances were different. In that case, the police were conducting visual surveillance of a particular suspect’s movements, and a beeper augmented the officers’ senses. A modern GPS device is a far more potent means of tracking people than a beeper.

Lower courts have reached different conclusions. A panel of the Chicago-based United States Court of Appeals for the Seventh Circuit ruled in 2007 that a warrant is not required for remote surveillance by a GPS device, although it said that if the police began to use the technique on a large scale it might violate the Fourth Amendment.

The highest courts of four states — Massachusetts, New York, Oregon and Washington — ruled the opposite way, that their state constitutions prohibit the police from installing GPS devices without a warrant. The New York Court of Appeals, the highest New York court, got it exactly right earlier this year, insisting that permitting police to install GPS devices without judicial oversight would be “an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”

In 1967, in
Katz v. United States, 389 U.S. 347 (1967), the Supreme Court case heard a case about the effect of technology and the Fourth Amendment. There, FBI agents had placed a listening and recording device on the outside top of the booth. This device yielded information that was admitted at the defendant's trial. Katz was convicted on charges of transmitting wagering information. Relying on the law of the time (Olmstead v. United States), the Court of Appeals correctly affirmed the conviction, finding that no Fourth Amendment right had been violated because the installation of the device involved “no physical entrance” to the space occupied by the defendant.

The High Court reversed the conviction, holding that government agents had violated the privacy on which the defendant relied. Further, the Court ruled that the eavesdropping activities constituted search and seizure. Noting that the Fourth Amendment covered not just the seizure of goods but of oral statements as well, the Court found that “the Fourth Amendment protects people rather than places and its reach cannot turn on the presence or absence of a physical intrusion into any given enclosure.” Justice Harlan's concurring opinion in Katz conveys his understanding of “a two-fold requirement” in determining whether a privacy protection applies to an individual: (1) “a person [must] have exhibited an actual (subjective) expectation of privacy;” and, (2) “the expectation [must] be one that society is prepared to recognize as ‘reasonable.”’
Katz was important because it jettisoned the laws of physical trespass and look to actual privacy interests. While Katz was initially heralded as enhancing civil rights, Katz had the unforeseen effect of legalizing a police invasion of privacy in places where Courts simply declared that the suspect’s privacy expectations were unreasonable.

In
United States v. Knotts, 460 U.S. 276 (1983), the Supreme Court directly addressed the issue of whether monitoring beeper signals constitutes illegal search and seizure. There, Minnesota police believing that a suspect was involved in the manufacture of illegal drugs, arranged for the placement of a radio transmitter in a container of chloroform that was later sold to him. Using the beeper signals transmitted by the device, police tracked the defendant to a secluded Wisconsin cabin. After several days of visual surveillance, police secured a search warrant, searched the cabin, and found a drug laboratory. The beeper, however, was installed without a warrant. The defendant was convicted in federal district court for conspiring to manufacture controlled substances, but the court of appeals reversed the conviction, finding that monitoring the beeper signal violated the Fourth Amendment.

Referring back to
Katz, the Court held that monitoring beeper signals did not violate any legitimate privacy expectation on the part of the defendant, and therefore no search or seizure had occurred. “The beeper surveillance,” the Court found, “amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.” Furthermore, it held that “[n]othing in the Fourth Amendment prohibited the police from augmenting their sensory faculties with such enhancement as science and technology afforded them in this case.”

The Court expanded its holding one year later in
United States v. Karo, 468 U.S. 705 (1984). There, a Drug Enforcement Administration (DEA) agent learned through a government informant that three defendants had ordered 50 gallons of ether, which they intended to use in extracting cocaine from imported garments. The DEA obtained court authorization to install a beeper in one of the containers holding the ether. When Karo, one of the defendants, picked up the containers from the informant, DEA agents, following the radio signals, pursued the vehicle back to his residence. Subsequently, the monitored container was moved to four more locations, the last of which was a locker--jointly rented by two defendants in the case--in a commercial storage facility. Ultimately, the container was taken to the home of one of the defendants, a warrant was executed, cocaine found, and the defendants arrested for a variety of offenses related to the production and sale of cocaine. The defendants filed a pretrial motion to suppress the seized evidence as the fruit of the unauthorized installation and monitoring of beeper radio signals. The district court granted the motion to suppress, and the court of appeals affirmed the district court finding for all but one of the several defendants.

In its ruling, the Supreme Court reversed both the district and appeals courts, holding that installation of the beeper did not transgress the Fourth Amendment. Monitoring the beeper, however, did violate the defendants' Fourth Amendment rights. The concealed beeper provided information from the defendant's private residence that could not otherwise be obtained through visual surveillance. Nevertheless, the Court concluded that the evidence was not tainted and should not have been suppressed because ample evidence--apart from the information derived from the beeper transmissions--established probable cause to search the defendant's dwelling.

In
Kyllo v. United States, 533 U.S. 27, 34, 121 S.Ct. 2038, 150 L.Ed.2d 94 (2001), the United States Supreme Court applied Katz to bar the admission of thermal images of a defendant’s home. To look beyond the walls of the defendant’s home, the police beamed a thermal imaging gun at the home and looked at the heat signatures. The Court held that because the police obtained something they could not have constitutionally obtained through the use of their own senses, the Fourth Amendment was violated. The problem with the Kyllo ruling is that if a police dedicated a squad of officers to follow a suspect around the clock. With GPS, they simply attach a device to the defendant’s car and let a computer systematically log Mr. Jones’ travel.

The New York Times is correct that Mr. Jones
should win his appeal, but he probably will not. All federal circuits that have considered the issue have voted against his position. See, e.g. United States v. McIver, 186 F.3d 1119, 1126-1127 (9th Cir.1999), cert. denied, 528 U.S. 1177, 120 S.Ct. 1210, 145 L.Ed.2d 1111 (2000) (installation of GPS device on undercarriage of vehicle in driveway was not search where driveway not within curtilage); United States v. Williams, --- F.Supp.2d ---- (W.D.Ky.2009) (no search where GPS device was installed on exterior of vehicle and vehicle was tracked only on public roads, but outcome might have been "entirely different" if device had been installed or monitored while vehicle was located on private property); United States v. Jones, 451 F. Supp.2d 71, 88 (D.D.C.2006) (tracking GPS device on public roadway was not search, but GPS data received while vehicle was parked in garage was obtained as result of search); United States v. Moran, 349 F. Supp.2d 425, 467 (N.D.N.Y.2005) (tracking GPS device on highway was not search where officers could have conducted surveillance by following vehicle on public road); United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007). Many state courts have found that their own constitutions protect against these searches without a warrant and probable cause. This includes New York (See People v. Weaver, 12 N.Y.3d 433, 445, 882 N.Y.S.2d 357, 909 N.E.2d 1195 (2009)) and Massachusetts (Commw v Connolly, 913 NE2d 356, 367 (Mass 2009)). See also State v. Campbell, 306 Or. 157, 172-173, 759 P.2d 1040 (1988); State v. Jackson, 150 Wash.2d 251, 264, 76 P.3d 217 (2003) (raising issue under State Constitution only).

Unlike the New York Court of Appeals, the D.C. Circuit does not have the luxury of creating a higher standard in the District of Columbia. As a federal enclave, the District of Columbia does not have the autonomy to give its citizens greater protection than that found under the United States Constitution.

In non-law enforcement contexts, Courts are quickly embracing the notion that privacy interest prohibits a persons’ interest from being blasted across the World Wide Web, even if the data is open for public inspection in some obscure Government office. The danger associated with this GPS tracking is that the police can automatically track the whereabouts of hundreds of thousands of individuals (without suspicion) without even committing the manpower and resources to the project which act as some limiting factor on Government. While the New York Times is correct about what the Court should do, the relief will probably have to come from the United States Supreme Court.

Update: To read the amcius brief in this case, click here.