Should Police Be Able to Track you Electronically?

Will the Requirement to Obtain a warrant Survive in the Supreme Court

The United States Supreme Court heard oral arguments on the US v.s. Jones case last week and according a Washington Post Op-ed the “Court has a chance to keep big brother at bay.”    The  Supreme Court had recently granted the US Department of Justice’s petition to review the decision of the US Court of Appeals which struck down the conviction of a man based in large part upon the use of GPS tracking without a warrant.

The ustices are tasked to review and to determine  whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.  Also to be considered is whether the government violated the respondent’s Fourth Amendment rights by installing the tracking device without a valid warrant and without the defendant’s consent.

Some call this a case of big brother gone wild, but on the flip side the other side of the issue is the argument that law enforcement needs the technological advantage provided by GPS tracking in order to more effectively detect and investigate criminal behavior.  The question here is whether or not the right to be free of unreasonable search and siezure guaranteed by the US Constitution outweighs the need of society to be relatively free of crime.

Most Important High Court Review of this issue Since Katz in 1967

This case represents the most important review of the issue of police authority in investigation with or without a warrant since the Katz decision in 1967 which dealt with the wiretapping of telephones.  In this case Antoine Jones, a Washington, D.C., man who was trailed by the FBI via a Global Positioning System tracker. He was convicted in 2008 for allegedly possessing and distributing more than 50 kilograms of cocaine.  Does a police agency have the right to attach tracking devices to a person’s private property? Is a person entitled to a right of privacy in his or her movements, even on public street?  How does a GPS tracker differ from visual surveillance? Why is a warrant needs to allow police to use investigative tools and technology?

A Warrant Provides Judicial Oversight and Protects Constitutional Rights

The Court’s decision in this case could have a far reaching impact especially if the Court upholds the use of GPS tracking without a warrant. Would police then be able to attach a GPS tracker to other items of personal property which are in public view?  For instance an article of clothing, like a coat, that you may hang on the back of a chair in a public building, or maybe a ladies purse in a shopping cart in a public mall or supermarket.  There does need to be a limit of how and when the police use any investigative tool, especially if it invades the personal space and property rights of a citizen.

The purpose of a warrant is to provide judicial oversight to ensure that the police (executive branch) does not overreach the constitutional rights of individuals. To obtain a warrant the police must present facts to a court of proper jurisdiction and request permission (a warrant) to use the desired investigative tool and show the court that probable cause exists to believe that the subject of the investigation is or will likely commit a criminal act.  The police also have to show that reasonable cause exists to use the method(s) they are requesting- ie search, wiretap, etc.  Of course police can do many things without a warrant, but warrants or usually required to invade privacy, or when a Fourth Amendment question is present.  It is the judicial branch, not the executive branch that is charged with interpreting constitutional rights, and thus responsible for determining if certain rights should be altered or waived in order to protect society.

Shouldn’t Law Enforcement Be Able to Use all Available Means to Detect and Prevent Crime

We have more and more crime plaguing our cities and streets everyday, and the criminal element has a full array of technology to assist in the criminal enterprise, radar detectors, so-called burn phones, satellite phones, and VOIP systems.  Why should the police not be allowed to freely make use of new electronic gadgets to simplify the job of stomping out crime?  Well, of course the police are allowed to use this technology, but are currently required to obtain a warrant from a court.  In other words the police must show probable cause that the person to be GPS tracked is involved in a criminal venture.  The Jones case, which is currently at bar, involved a drug dealer whose vehicle was parked on a public street, and the police placed a GPS tracker on the exterior of the vehicle which ultimately led to Jones’ arrest.  The government argues that the exterior of the vehicle was fair game for placement of a tracking device, because it was in public view, and the interior was not invaded.  But the vehicle was personal property owned by a US citizen, not government property.

GPS Tracking Without a Warrant is Invasive of Personal Freedom

The other question that arises: Is there really a difference between following a vehicle the old fashioned way and using GPS tracking?  Law enforcement has almost always been permitted to conduct physical surveillance and follow a criminal suspect by vehicle, on foot, etc, all without a warrant. Why not electronically?  The reason that electronic or GPS tracking is more problematic than physical surveillance is that the placement of a tracking device invades the personal space or property of the alleged criminal suspect.  Albeit the end result may be the same, the police can observe criminal behavior in either scenario.  Allowing the government the ability to attach electronic tracking devices to a vehicle on a public street, will surely lead to more invasive techniques in the future – clothing, a cell phone sitting on a bar, a purse hanging on a chair back in a public place… Ultimately the issue involved is that a person is presumed to be a law abiding citizen until there is probable cause to believe otherwise.  The fourth amendment was designed to prevent the long arm of the government from reaching into the personal lives of its citizens without the due process of law.  Probable cause is the lowest burden of proof within the judicial system – the police must show a factual basis that it is likely that criminal conduct has occurred or will occur. If the police have probable cause to believe that criminal conduct is transpiring then let them show that to the court. 

Be sure to consult with a criminal attorney if you believe that you are being investigated or about to be charged with a crime.  Continue to follow The Law and You for updates and insights into Should Police be able to track you electronically.