Supreme Court Ban on Warrantless GPS Tracking Has Wider Implications

By Wayne Rash  |  Posted 2012-01-23

Supreme Court Ban on Warrantless GPS Tracking Has Wider Implications

The U.S. Supreme Court released a unanimous opinion on tracking suspects using GPS locaters attached to cars, saying it is unlawful to initiate a GPS search without a warrant.

A U.S. Supreme Court decision released on Jan. 23 will have a significant impact on how law enforcement officers can use GPS technology to track criminal suspects in a wide variety of cases.

In this case, the use of a GPS location device attached to the bottom of a car driven by a suspect allegedly to conduct drug deals was considered a violation of the suspect's Fourth Amendment rights under the U.S. Constitution. But in some ways the case raises more questions than it answers.

The case in question was the conviction of Antoine Jones for drug trafficking. The police asked for and received a warrant for the GPS tracking in the District of Columbia good for 10 days. However, the police didn't actually manage to affix the device to the vehicle being used by Jones until 11 days later, in a parking lot in Maryland. The trial court accepted the GPS evidence, which helped locate the place where Jones stored his drugs, but that was overturned on appeal, as was the conviction.

The Supreme Court, in deciding the case, took the most narrow possible view. The reasoning behind the decision was that the act of attaching the GPS device after the warrant expired constituted an illegal search. Essentially, the court reasoned that by touching Jones' car, the police effectively seized his effects without a warrant, which is one of the things that the Fourth Amendment says you can't do. The Fourth Amendment says "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." All such seizures require a properly sworn warrant issued by a court, the amendment says.

It's worth noting that there was a significant split on the court regarding how far the opinion should go. For example, the majority of the court specifically didn't address whether tracking a car through a built-in GPS device, such as the GM OnStar system that has the ability to report a car's location, or through the position of a cell phone, either through a built-in GPS or through triangulation would be an illegal search.

However, the court did give some indication of the direction it might take if such cases were to come before it. The court noted that constant surveillance from a public place, such as following a suspect, or posting cameras in public places, was not a search. The GPS case was a search specifically because the location device was physically placed on the suspect's car by the police, who then tracked it for a month.

On the other hand, some of the justices wrote that tracking without having to place a tracking device on the car may itself have been an unconstitutional invasion of privacy.

Decision Raises Many Questions Sure to Arise in Future Appeals


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. 

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