Supreme Court Drills Down on Warrantless GPS Tracking

Posted November 8, 2011 in Criminal Law by Arthur Buono

Today the Supreme Court "checks in" on police use of a technology that carries the gravest possible privacy consequences. While I doubt the Justices use Foursquare or any geolocation service to disclose their whereabouts, they will hear arguments about whether police can use GPS to track the movements of citizens over extended periods of time without getting a warrant.

  • Supreme Court to decide if police may use GPS tracking devices without a warrant
  • Government claims tracking public movements not a search
  • Privacy and civil rights advocates say rights of privacy, association at risk


A Tale of Two Trackings

The Court has agreed to settle the conflicting GPS decisions issued by two federal appeals courts.

On the west coast, DEA agents used a GPS device to track the comings and goings of Juan Pineda-Moreno. On two occasions they entered his property to attach the device to his vehicle in his driveway. He was convicted with evidence this tracking helped obtain. The California-based federal 9th Circuit Court of Appeals, often maligned for its supposed liberal bias, upheld his conviction.

On the east coast, Antoine Jones of Washington, DC, was sentenced to life in prison for a drug trafficking conviction obtained with the help of a GPS tracker. Police attached it to his vehicle and monitored his movements for a month. They searched places he frequented and found drugs and money there. The federal Court of Appeals for DC overturned Jones’ conviction, saying the warrantless tracking violated his Constitutional rights. (It’s ironic, but the police actually got a warrant to use the device. They didn’t start using it though until after the warrant had expired. Such are the makings of important Constitutional decisions.)

And this is an important decision, which the Supreme Court will make after considering today’s arguments. To New York civil rights lawyer Susan J. Walsh, it may be "the most important privacy decision the Court will make in my lifetime."

Susan J. Walsh

What the Court decides may come down to how the Justices view the Constitution. There’s the black and white view, which is the government’s long suit. In the formal, or as it’s said, "formalistic" approach, the government may track people’s movements in public without getting a warrant. The Fourth Amendment protects against unreasonable searches. What you do in public is for anyone who cares to see – including the government. In this view the Fourth Amendment protects only "reasonable expectations of privacy" from warrantless searches. By definition, when you’re in public, you haven’t got much – if any – expectation of privacy.

Walsh explains that the Fourth Amendment "was written to protect us from having the government peer into our homes, our desk drawers, our satchels and wagons. It has always kept up with advances in technology and has since been applied to our communications, our telephones and our cell phones. Technology has become even more pervasive and invasive and this case will decide whether our Constitution is prescient and encompasses the intensely detailed information devices like a GPS tracker can compile about a person."

It’s easy to see that our homes, desks, letters and phones are protected for the contents they contain and secure. Law enforcement says GPS tracking discloses none of that and that the Fourth Amendment does not prevent police from tracking peoples’ public comings and goings. Why then should our public movements be protected, even from constant, precise, intense and prolonged surveillance?

What Your Comings and Goings Say about You

"Because," Walsh says, "the First Amendment guarantees the freedom of association, and I think this civil right is an important factor in the case. Your right to go where you will and to meet and gather with whom you choose is a fundamental civil liberty. This is your right of political association, your right of religious association. All that is at stake.

"That liberty means more than just being allowed to associate without interference, but also that you can do so privately, secretly even if you so desire." Walsh warns, "Certainly the ability of police to follow your movements in such detail means they can record whom you meet with, how often, how frequently, and this all compromises this associative freedom."

Jeff Vallens

Jeff Vallens, a California criminal defense attorney, agrees. He also finds the Pineda-Moreno decision offensive for a very low-tech reason. "To an extent, the location tracking is bootstrapped on decades of law giving less regard to automobiles. What shouldn’t be condoned at all is the warrantless entry by police onto a person’s property for the purpose of attaching the device to his vehicle," as happened to Pineda-Moreno.

Shahid Buttar, Executive Director of the Bill of Rights Defense Committee, agrees with the spirited dissent lodged by conservative 9th Circuit Judge Alex Kozinski to the Pineda-Moreno decision. Buttar says the decision makes a "ridiculous class distinction. It means that if you have enough money to enclose your property with a fence, the police can’t enter because you have an expectation of privacy within your property. If you don’t have those resources, then police can come in and attach a GPS device to your car without any judicial checks or balances. The decision means the Fourth Amendment doesn’t apply equally to everyone."

Buttar fears that if the Court doesn’t look beyond the formalistic Fourth Amendment analysis, the government will gain the unbridled power to track anyone, anytime, anywhere, without any oversight. But, he says, if the Court instead considers the purposes of the First, Fourth, or Fourteenth Amendments – which include protecting rights of association, privacy, free exercise of religion, and racial & ethnic minorities – the outcome will be different.

It’s easy to see how GPS tracking helps law enforcement catch criminals. After all it helped win these two convictions. But Buttar claims that the benefit to the government of warrantless GPS tracking is "trivial when you consider how easy it is for law enforcement to get a warrant. Compare the vast investigatory powers police already have against the profound harm to privacy and associational rights in removing any judicial check on warrantless location tracking. In asserting this authority, our government is claiming police powers more like those in the Soviet Union or Communist China, well beyond the traditionally limited government powers on which we Americans, inspired by our Founders, have always insisted."

The Tracks of Our Fears

Jeff Vallens notes too that the relentless, long-term and detailed tracking of an individual is bound to have collateral effects on innocent bystanders. "When police are tracking Mr. Jones," he observes, "what happens when he has a chance or purely innocent meeting with Mr. Vallens? What about the hundreds of other people Mr. Jones may meet with over a month? They are all swept into the picture. Even if they’re not implicated, do their whereabouts and what they were doing become part of some public record? Is that anybody’s business?"

Many Americans who have come of age in a digital, wireless era have no problems "checking in," otherwise disclosing their location and what they’re up to, or enabling the constant tracking of their movements by smartphones and other wireless devices. It’s part of social networking. So even as lawmakers and privacy advocates have criticized device makers and mobile app developers for tracking location without disclosing this clearly to users, or giving them the chance to opt out, these Americans might not think it a big deal if law enforcement targets criminal suspects for this type of surveillance – with or without a warrant. After all, if you’ve got nothing to hide ….

Whether you’re comfortable with this or not, Susan Walsh points out, "it makes all the difference that you know you’re being tracked and that you’ve consented to it." As for who’s being tracked, the problem, she says, is "today’s suspect target group is not yesterday’s suspect target group or tomorrow’s suspect target group." If police are free to track anyone they like without judicial approval, none of us can ever be sure of our privacy.

Art Buono co-authors the blog.

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