Big Brother Is Getting Bigger

Next month SCOTUS will get a chance to put the kabosh on police agencies getting a little too cute with their toys and possibly violating your constitutional rights in the process:

In a move that could have a profound impact on Fourth Amendment law, the Supreme Court has agreed to consider a question that has split the nation’s appeals courts: can the police install and use a GPS tracking device to follow a person’s movements around the clock every day for a month—without a search warrant?

The Supreme Court granted certiorari (pdf) today in United States v. Jones (once known as United States v. Maynard). In this case, FBI agents planted a GPS device on Antoine Jones’ car while it was on private property and tracked the location of the vehicle for a full month without a warrant. Jones challenged the surveillance tactic, arguing that it violated his Fourth Amendment right against unreasonable search and seizure.

You knew this was coming. With the advent of GPS, in devises like lojack, cell phones, On Star, keeping tabs on your vehicle and you is now rudimentary. And by placing a well hidden GPS device on your vehicle, without your knowledge, the cops can track your presence anywhere you drive, sans warrant. So now, you don’t have to be a suspected terrorist, or a drug kingpin, any unsavory types that look like them and criminal activity are simpatico, they get the treatment.

Some obvious questions that SCOTUS will have to look at:

1) If the vehicle is tagged with the GPS device while on private property, isn’t the agent installing the device trespassing? So wouldn’t any info collected from the devise be subject to The Exclusionary Rule?
2) Does stalling such a device constitute a search or seizure? Is using the device a search or seizure? How about long term use, is that a search or seizure?
3) If it is not deemed a search, are there any other privacy issues involved?
4) If a warrant is necessary, how unconstitutional are “open ended” warrants, those not limiting a time frame for it’s use?
5) If the GPS device was installed to track a specific individual and someone else uses that car and subsequent criminal activity occurred, would the GPS evidence be admissible?

I am linking a BAY Area article on the case because here there was two specific cases independent of Jones but with GPS implications that would on their own make them eligible for SCOTUS determination.

Earlier this year, evidence from a tracking device installed without a warrant on a car belonging to Yusuf Bey IV, the former leader

of Oakland’s Your Black Muslin Bakery, helped convict him and another man in the 2007 murder of journalist Chauncey Bailey. Bey IV’s lawyer argued that the tracking data was obtained illegally, but a judge ruled otherwise.

If the Supreme Court rules that installing a tracker without a warrant violates the Fourth Amendment protection against unfair searches and seizures, the convictions of Bey IV and his co-defendant Antoine Mackey could be thrown out and a new trial ordered in the Bailey case, legal experts said. Two other murder convictions against Bey IV and one against Mackey would not be affected.

And

Last year, Yasir Afifi, an Egyptian-American student at Mission College in San Jose, filed suit after he found a GPS device on his car after taking it in for a routine oil change.

The Council on American Islamic Relations earlier this year sued the government on behalf of Afifi, arguing that his Fourth Amendment rights were violated and describing the tracker as “acting as an illegal trespasser.” Afifi, 20, who was born in the United States, said he has never done anything to attract attention of law enforcement.

The FBI placed it on Afifi’s car without a warrant as part of an investigation about which it has refused to provide details.

Police use the “expectation of privacy” exception to justify the use of GPS in tracking suspects, that while on city streets in public venues, suspects have no expectations of privacy and the use of GPS would be analogous to the cops tailing the suspect in an unmarked car. The problem with this rational is that the cops could only follow you where that expectation is applicable, but where it is not, private property, the tail would be terminated especially if that private property is secured. The GPS device knows no limitations and would continue it’s work, even in areas where it’s very application would be outside of legal scope.

The Jones case is interesting because here the police did get a warrant for the device, but the warrant expired before the device was installed. Using the GPS device, the police were able to gather evidence for a drug conviction. Defense council argued that the evidence was inadmissible due to an expired warrant and the people argued that it did not matter becasue a warrant really was not necessary to begin with.

It is interesting to me that most landmark police cases ( and this will qualify) are the result of the police basically being lazy in the administration of their duties. Extending the Jones warrant would have been almost effortless, yet it was circumnavigated for expediency sake. Miranda, Mapp, cases involving Castle violations, warrants-with the proper probable cause attached- are simple to obtain, yet avoiding that extra step has proved disastrous (and costly) to many police agencies.

I see no problem with police using whatever technological devices available in the performance of their duties, with the clear proviso that all must pass the constitutional test. I would expect the use of willy nilly GPS devices slapped on anyone for any reason without a sufficient foundation of a legal warrant to be unconstitutional and a clear violation of the Fourth Amendment. And the implications of Big Brother being able to track anyone anywhere is chilling.

Comments are closed.

  1. Manwhore

    I disagree with the expectation of privacy argument. Unless the police are leaving the device on the exterior of the car so that you can see it, they’ve conducted a search of the vehicle to place the device. Just like snooping on laptops or anything else like it you should need a warrant.

    Two other murder convictions against Bey IV and one against Mackey would not be affected.

    So they might have to retry one case, but they will still remain in jail. I think that it was still an illegal search, but that’s just me.

    It is interesting to me that most landmark police cases ( and this will qualify) are the result of the police basically being lazy in the administration of their duties. Extending the Jones warrant would have been almost effortless, yet it was circumnavigated for expediency sake.

    I agree, and it upsets me every single time that shoddy police protocol or sheer laziness brings these cases up too. It’s not that hard for a cop to get a warrant, but I wonder if the attitude is it won’t matter and the judge would rule the evidence admissable anyway, so why bother?

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  2. Seattle Outcast

    Cops are getting too full of themselves. Time to put the hammer down on most metropolitan police forces and remind them that they work for us, we’re not all “civilians” and “perps”…

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  3. InaneGoldfish

    MW, I disagree with your conclusions partly and agree to some degree too. The situation must be looked at whether the tracker was installed on private or public property.

    If installed on private property that has some indicia that the public did not have access to the area (e.g. fence, gate, inside garage, etc.), I would agree that the warrant is needed because of the intrusion onto private property and the property owner’s reasonable expectation of privacy – if we cannot expect privacy in our own homes, where can we expect it?

    However, if the installation occurs on public property or property where the general public can easily access it (e.g. parked in front of your garage or on the street in front of your house, or even further, if you have a driveway that is not gated), I would agree with the feds that there is no reasonable expectation of privacy. Much in the same way that once your garbage in on the street it’s fair game to be searched.

    That being said, I do no see placing a tracker on the car as an actual search. However, once the
    data is collected, looked at, or interpreted by a person, then it becomes a search. I know it seems like splicing hairs, but the distinction has potential to become very important.

    Unfortunately, I think that dear old SCOTUS will come out somewhere along the lines of “because the technology is pretty much available to anybody who wants it, it’s ok to use”. And therefore if the GPS is put on the car while on public property or while on private property where there is no reasonable expectation of privacy, the police have done no wrong. I would like to see some kind of notice built into that kind of GPS monitoring though, much like wiretaps.

    As to GPS installed on private property where a reasonable expectation of privacy exists, without a warrant, I would want to think that the Police are out of luck. But who knows if SCOTUS would go so far as to make the evidence gathered subject to the Exclusionary Rule

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  4. Manwhore

    However, if the installation occurs on public property or property where the general public can easily access it (e.g. parked in front of your garage or on the street in front of your house, or even further, if you have a driveway that is not gated), I would agree with the feds that there is no reasonable expectation of privacy. Much in the same way that once your garbage in on the street it’s fair game to be searched.

    I don’t agree with this at all, and for the same reasons that DUI check points must be publicized–it is a search/seizure. By publicly announcing it the police have done due dilligence in the eyes of the court to advise (I don’t really see it that way, but I’m not a judge).

    I think an officer could reasonably inspect the exterior of the vehicle (the plates, tires, grille, etc.) and place one there, but to go under the vehicle is a little touchy for me. Sure, you cna be stopped by police to enter airports, but you are present and volunteer the search to gain access. Anything going into the vehicle, to me, would reasonably need a warrant much like one is needed to search an interior cabin or trunk.

    Your garbage analogy is a little different, you are volunteering to give that up and have it dumped by a garbage man anyway so there’s not reasonable expectation of privacy. You don’t volunteer the contents of your car in public or private property without permission….That’s called breaking and entering.”

    I would see tampering with someone’s vehicle that way.

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  5. Kimpost

    You guys obviously know the Constitution better than I do, but my thought is this.

    If the police indeed can mount a GPS tracker on a vehicle without a warrant, then what would be stopping them from putting one on every car in the United States, on a “better safe than sorry” basis? I mean people will use cars for crime, and having access to all that data would be wonderful for the cops.

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  6. richtaylor365 *

    Kimpost is the most correct. There is a mountain of case law discouraging “fishing expeditions”, searches conducted just for the sake of seeing what you can find, and most of it pertains to vehicles, which unlike a home, mobility is involved and has strict enforcement triggers in place. Case law tells us when the cops can search a trunk and when they can’t, when they can go into a glove box, a closed case like a brief case, or a closed box, all written to discourage fishing expeditions. Warrants written to search a private residence are not open ended, they don’t say “whatever you find is just peachy” but limits the police to a certain object. Slapping a GPS device on any car the police has a mere suspicion of, without a warrant, just to see where the guy will go smacks to me of a fishing expedition, not good.

    I think an officer could reasonably inspect the exterior of the vehicle (the plates, tires, grille, etc.) and place one there, but to go under the vehicle is a little touchy for me.

    Where the device is placed is totally irrelevant, either it’s use constitutes a search which would then require a warrant, or it doesn’t.

    However, if the installation occurs on public property or property where the general public can easily access it (e.g. parked in front of your garage or on the street in front of your house, or even further, if you have a driveway that is not gated), I would agree with the feds that there is no reasonable expectation of privacy

    I think this also misses the point. Whether the police placed the device in my driveway of my residence, or while I was visiting my local library (public property parking lot), it is still on my car so the issue of whether this constitutes a search is still valid, without a warrant they may have violated my rights, this is what SCOTUS needs to decide.

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  7. Seattle Outcast

    However, if the installation occurs on public property or property where the general public can easily access it (e.g. parked in front of your garage or on the street in front of your house, or even further, if you have a driveway that is not gated), I would agree with the feds that there is no reasonable expectation of privacy

    That’s like saying the police can pull me over at will and search my car for no reason other than they’re bored and I’m on a public road.

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  8. Manwhore

    Kimpost is the most correct. There is a mountain of case law discouraging “fishing expeditions”, searches conducted just for the sake of seeing what you can find, and most of it pertains to vehicles, which unlike a home, mobility is involved and has strict enforcement triggers in place. Case law tells us when the cops can search a trunk and when they can’t, when they can go into a glove box, a closed case like a brief case, or a closed box, all written to discourage fishing expeditions. Warrants written to search a private residence are not open ended, they don’t say “whatever you find is just peachy” but limits the police to a certain object. Slapping a GPS device on any car the police has a mere suspicion of, without a warrant, just to see where the guy will go smacks to me of a fishing expedition, not good.

    I think an officer could reasonably inspect the exterior of the vehicle (the plates, tires, grille, etc.) and place one there, but to go under the vehicle is a little touchy for me.

    Where the device is placed is totally irrelevant, either it’s use constitutes a search which would then require a warrant, or it doesn’t.

    Given this revelation I can see what your attitude (or what the attitude or the people who endorse These measures is). However, I totally disagree. You are talking about the device and not the intrusion. Let’s say someone came up with the bright idea of a tooth filling that has gps. Would this fit into you scenario of something the police can use to search without warrant?

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  9. AlexInCT

    They are already getting that done by government decree Kimpost. And congress has passed a lot of stupid shit and is working to pass even more stupid shit that will allow government to track vehicles at will. It’s being done as part of some initiative to make sure car manufacturers are complying with the required new feul standards or as Harley pointed out to track road usage to tax drivers, but in the end it amounts to government being able to track driving speeds, travel paterns, as well as location of any vehicle, and they can do it with or without your consent. Fuck, GM was recently in a huge scandal because it was still tracking cars where the owner had stopped subscription to OnStar and selling that information to insurance companies and government agencies. This is the shit you would expect from the USSR, not the US of A.

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  10. richtaylor365 *

    {sigh}, did you even read the post? Because if you did then you would not lump me in with those that think willy nilly GPS use is honky dorey, I was clear as could be on this.

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  11. InaneGoldfish

    That’s like saying the police can pull me over at will and search my car for no reason other than they’re bored and I’m on a public road.

    Well, not it isn’t. In that there is a seizure involved in being pulled over. Police still need a valid reason to pull you over (of which there are many). And they can do it even if the reason for pulling you over has nothing to do with why they WANT to pull you over.

    That being said, pulling you over to place a GPS device on you car would not be very effective since most people would immediately remove it. I wholeheartedly dislike the idea of police being able to, without a warrant, put a GPS tracker on a car. I do, however, think that SCOTUS will uphold the practice in certain situations.

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  12. Seattle Outcast

    They can pull you over, but they generally need a warrant to perform a search – speeding or failing to yield right of way at a stop sign isn’t grounds to rifle through your trunk and glove box. Which is why they ask if they can search your car (the answer is always “not without a warrant” even if all you have in your car is fast food wrappers and not a loaded .45 and a brick of heroin).

    The police are our servants, not our masters, but they generally forget that on a regular basis.

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