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Monday, November 23, 2009

Courts - "GPS and Privacy Rights" [Updated]

From an editorial today in the NY Times:

A federal appeals court in Washington, D.C., heard arguments last week about whether police should have to get a warrant before putting a GPS device on a suspect’s car. It is a cutting-edge civil liberties question that has divided the courts that have considered it. GPS devices give the government extraordinary power to monitor people’s movements. The Washington court should rule that a warrant is required.

Antoine Jones was charged with being part of an interstate drug conspiracy. The government obtained evidence against Mr. Jones by putting a GPS device on his Jeep. It obtained a court order to install the GPS device, but the defense said the order was faulty, and tried to get the evidence collected by the device thrown out. The government responded that the evidence was admissible because it did not need to get a court order at all.

The Supreme Court has not considered the question of whether the police need a court order to install a GPS device. The government has tried to draw an analogy to a 1983 case in which the court ruled that the police do not need a warrant to use a radio beeper to track a vehicle on public roads, but the circumstances were different. In that case, the police were conducting visual surveillance of a particular suspect’s movements, and a beeper augmented the officers’ senses. A modern GPS device is a far more potent means of tracking people than a beeper.

Lower courts have reached different conclusions. A panel of the Chicago-based United States Court of Appeals for the Seventh Circuit ruled in 2007 that a warrant is not required for remote surveillance by a GPS device, although it said that if the police began to use the technique on a large scale it might violate the Fourth Amendment.

The highest courts of three states — New York, Oregon and Washington — ruled the opposite way, that their state constitutions prohibit the police from installing GPS devices without a warrant. The New York Court of Appeals, the highest New York court, got it exactly right earlier this year, insisting that permitting police to install GPS devices without judicial oversight would be “an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”

As technology advances, government will continue to acquire new and more efficient ways of monitoring people. It is critical that the privacy rights guaranteed by the Fourth Amendment keep up with those advances.

For more on the NY ruling, see this ILB entry from May 18, 2009, and this one from July 2, 2009. The May entry also discusses and links to the 7th Circuit opinion, U.S. v. Garcia.

The NYT editorial does not mention a Sept. 17, 2009 Mass. high court decision about which the Boston Globe wrote at the time: "For the first time, the Supreme Judicial Court ruled yesterday that the state constitution allows police to break into a suspect’s car to secretly install tracking devices using a global positioning system, provided that authorities have a warrant before they do so." That decision was Comm. v. Connolly.

Here is the State of Washington case from 2003, Jackson v. State, and the much-cited Oregon case from 1988 (involving a radio transmitter), State v. Campbell.

[Note that the ILB used the new Google Scholar feature to quickly access these cases. Read about it here.]

[Updated 11/24/09] We have had at least one trial court ruling in Indiana on this issue, and the ILB reported it on March 9, 2006. Here is an OCRed copy of the March 6, 2006 Order Granting Motion to Suppress, issued by Judge David O. Kelley, Warrick Circuit Court.

Posted by Marcia Oddi on November 23, 2009 05:24 PM
Posted to Courts in general