Using prolonged GPS tracking is to my way of thinking so obviously a "search" in the Fourth Amendment sense that using GPS to establish the probable cause necessary to pursue that search in the first place effectively eviscerates any mechanism by which a suspect (presumed innocent, remember) can protect him- or herself against an arbitrary search. (Disclaimer: IANAL.)
In August, 2010, the D.C. Circuit Court of Appeals became the first federal appeals court to rule that prolonged GPS tracking of a suspect's vehicle without a warrant violated the Fourth Amendment. In doing so, it reversed a conviction and life sentence of an alleged major drug trafficker.
This week, the Obama Administration petitioned the Supreme Court for a writ of certiorari in the case, asking it to find neither probable cause nor a warrant is required. You can read the petition, which has the circuit court's opinion attached, here. [More...]
Among the reasons DOJ wants to avoid getting a warrant: it wants police to be able to use the device at the beginning of an investigation, to help them establish probable cause (which is needed for search warrants, wiretaps and indictments.)
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If police use a GPS device (presumably secretly installed) on anyone's vehicle, they can doubtless learn a lot about them; otherwise why would they bother to do it. But if it is done, there is no way it is done with any intent by the police other than to perform a search. That's why the Fourth Amendment requires a warrant: otherwise, police could simply track "known criminals" (i.e., anyone they feel they would like to arrest) with no judicial oversight, no counterbalance to the very considerable power of continuous location surveillance.
If the suspect is in fact guilty, and there is genuine probable cause established by basic police work, there is no judge who would deny police a warrant for supervised tracking, if that were necessary to establish guilt. But think about it... should they allow unlimited warrantless tracking to establish probable cause? What if... as the law presumes... the suspect is innocent? His or her privacy has just vanished, a victim of an increasingly invasive government.
If the Obama administration succeeds in persuading the Supreme Court to grant cert, you know good and well what will happen to our Fourth Amendment rights: "And another one gone, and another one gone... another one bites the dust..."
As a former member of the law enforcement community - if you don't have enough to establish probable cause, you don't have enough to assign resources to the matter.
ReplyDelete"Probable cause" is not exactly a "mountain", Depending on the judges involved, it might not even be much of a "threshold". You get the warrant, whether you actually need it or not, because it makes the prosecutors happy, and reduces the number of hearings before the trial can begin.
If you taint the original "probable cause" by playing fast and loose with the rules, the whole case can collapse and all of the evidence collected can be excluded from trial. It is a stupid gamble.
Bryan, I've never seen an instance in which obtaining a warrant was an obstacle to a legitimate search. Indeed, from what most police officers I've known say, judges seldom even hesitate to issue a warrant. The point of a warrant is to discourage police from doing something fast and loose, presuming they would be more reluctant to do something dishonest if they know a judge is aware of their intended search. So when an entire DOJ asks the Supremes to declare "no warrant necessary" for a fairly broad search technique like tracking with GPS, the hairs on my neck stand on end... why do they want to do that?
ReplyDeleteOT, have you seen reference to the use by police of opening lines such as "Do you mind if we search your car?" To which the correct grammatical answer is "Yes" (i.e., I do mind) to refuse consent, but most people of course say "No" when they mean to refuse... well, you can see where this is going, and has gone all too frequently, according to the ACLU. Sigh.
Another good reason not to use GPS! Call me old-fashioned but I still use maps.
ReplyDelete"anyone they feel they would like to arrest) with no judicial oversight, no counterbalance to the very considerable power of continuous location surveillance." Probably cause is now a 'quaint' excessive thanks to the continuation of the unitary powers of the presidency and its thug arm of enforcement under the Attorney General. Previously prosecutors and judges had to rely of testilying: http://en.wikipedia.org/wiki/Testilying
ReplyDeleteCops lie as a matter of fact these days----juries and judges accept that as normal.It started to 'fully' convict the guilty, but then began to be applied to any case supporting those who have paid the price for a successful verdict. You don't see people of color for example being sent to country club prisons or the CEO of Citibank going to prison at all.
The judicial system in America is so corrupt, that this state alone will bring down what we once knew as Democracy.
Kay - do you carry a cell phone? do you keep it turned on? While its reporting of location is indirect and a lot less specific than GPS (as I understand it, all a cell phone can tell anyone is the location of the cell tower with which it is communicating at the moment), it can nonetheless provide a vague indication of your location, and possibly direction, if you're in motion.
ReplyDeleteI am more concerned with "security" cameras, which I call surveillance cameras. In some places such as London, an individual minding his or her own business on the public streets can be photographed by literally thousands of CCTV cameras a day. Even lowly Houston, TX, in the Land of the Free [/snark], has two systems that I know of, the freeway jam-cams (for public use) and the red-light cameras (for police use); I'm sure there are more.
mandt, you may be right about the fatal effects of a perverted judicial system. As with any politically associated large public function, justice is certainly vulnerable to intentional crimes like testilying (it's not in my spell checker, but I've seen the term many times before) and to unintended miscarriages of various sorts... even people operating in good faith screw up sometimes.
ReplyDeleteI don't know that a perfect system of justice is possible, but with the current Supreme Court at the head of the judicial-branch part of it, and Obama's DOJ running the executive-branch show, you know we're in for a lot of trouble.