Decision Raises Many Questions Sure to Arise in Future Appeals

By Wayne Rash  |  Posted 2012-01-23 Print this article Print


Other justices were concerned about the length of the surveillance-the original warrant was for 10 days, but the suspect was tracked for a month. The majority opinion, written by Justice Antonin Scalia, acknowledged that those questions exist, but chose not to address them. "The present case does not require us to answer that question," Scalia said.

The wide divergence of opinions on the court, in which all of the justices agreed that the tracking was unconstitutional, but disagreed in exactly which way, may have been the cause of the extremely narrowly worded opinion. During the arguments in the Supreme Court hearing, the justices wondered frequently about the limits of surveillance, posing questions ranging from satellite imagery to RFID tags.

The result of this ruling is that for the moment, surveillance using a GPS locater is legal only if law enforcement officers first obtain a search warrant allowing them to do it. This, of course, means that the police must demonstrate to a judge's satisfaction that they have probable cause to do this. While some may view the court's decision as a setback for law enforcement, in reality, it's not. After all, the police were able to get the search warrant and had proved probable cause to obtain it. All that really happened is that they didn't execute the search within the time limits.

Because the warrant had expired, the GPS device constituted a warrantless search. In regards to getting a conviction of Jones based on the GPS evidence, all the police had to do was get the warrant renewed or reissued instead of executing it past its expiration date. In other words, the police made a mistake and prosecutors then adopted the theory that the search didn't require a warrant. This, of course, raises the question of why the police had obtained a warrant in the first place if they didn't believe they needed it.

Clearly the case raises questions. Is it an illegal search if the police are triangulating your position by the signals received from cell towers? While such positioning isn't as precise as GPS, it's still reasonably good. But is such surveillance the same as watching a car from the air? Or is it the same as reading the position of your OnStar receiver remotely? I suspect, but since the court specifically avoided the issue, tracking via OnStar probably isn't legal either. But who knows?

What I can predict with certainty is that those cop shows that are forever tracking suspects using their phone GPS or attaching those devices that played a role in the Supreme Court case are going to have to rewrite their scripts. So before you book him, Dan-o, you'll have to have a warrant for that GPS device. 

Wayne Rash Wayne Rash is a Senior Analyst for eWEEK Labs and runs the magazineÔÇÖs Washington Bureau. Prior to joining eWEEK as a Senior Writer on wireless technology, he was a Senior Contributing Editor and previously a Senior Analyst in the InfoWorld Test Center. He was also a reviewer for Federal Computer Week and Information Security Magazine. Previously, he ran the reviews and events departments at CMP's InternetWeek.

He is a retired naval officer, a former principal at American Management Systems and a long-time columnist for Byte Magazine. He is a regular contributor to Plane & Pilot Magazine and The Washington Post.

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