Tracking Suspect with GPS Ruled Illegal Search

Posted August 9, 2010 in Criminal Law by Arthur Buono

You have no reasonable expectation of privacy in your very private backyard. You do have a reasonable expectation of privacy in your public comings and goings. Confused? Police cannot track the long-term movements of your vehicle with a GPS device without getting a warrant. A federal court in Washington, D.C., last Friday reversed a suspected drug-dealer’s conviction, because police attached the device to his car without getting court approval.

  • GPS device used to track suspect’s movements for a month
  • Court says you have a privacy expectation in your extended public travels
  • Where you have a reasonable expectation of privacy police cannot go without warrant
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New Decision on GPS Tracking Splits Federal Courts

The case might raise some eyebrows. First, common sense and many prior court rulings have established that you have a very low expectation of privacy in public. Public is the opposite of private after all. Second, police have often used radio devices to track the movement of motor vehicles. The courts have approved the use. Third, a couple of Courts of Appeal have already OK’d the practice. So what’s different about this case?

Former Supreme Court nominee Douglas Ginsburg explained the court’s ruling. The ruling hinged on the intensity and duration of the surveillance. The tracking occurred over about a month. The court noted that while you or I might expect somebody to be watching us when we went out and about, we would not expect the same person to dog us everywhere all the time for a whole month. The court also said that the totality of your movements over a month is much more private than that single trip you made to Walmart last Saturday. Looking at it that way, the court declared the tracking violated a person’s reasonable expectation not to be under constant surveillance.

The Fourth Amendment protects your reasonable privacy expectations from being thwarted without a search warrant. Only a judicial officer can issue a valid search warrant. It’s possible had police asked for one, the same reasons they had for tracking the suspect in the first place would have satisfied the probable cause necessary to get a search warrant. Because federal circuit courts now have split on the issue, the Supreme Court might feel obliged to weigh in. The decision it could give could help guide privacy law as it navigates a sea of new and intrusive technologies.

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