Tag: Exclusionary rule

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.