Last year, in the case United States v. Jones, the U.S. Supreme Court gave some faint hope to defenders of the Fourth Amendment that it might begin to rein in law enforcement unreasonable invasions of Americans' privacy. In that case, the FBI and DC cops attached a GPS device to the car of a suspected drug dealer without seeking a probable cause warrant and tracked his movements 24 hours a day for a month. In my article, Your Cellphone is Spying On You, I reported:
Although that conclusion was unanimous, the Court was divided on the rationale for it. Anthony Scalia, in an opinion joined by four other justices, emphasized the trespass required to attach the tracking device. Samuel Alito and three other justices emphasized the nature and volume of the information collected by the surveillance, which they said violated reasonable expectations of privacy. As Alito noted, the majority's reasoning would not apply to tracking via cellphone towers or GPS signals, which do not require a physical intrusion on the target's property. Hence we do not know yet whether the Court will decide those kinds of surveillance require warrants.
Yesterday, in U.S. v. Katzin, a case involving a series of pharmacy burglaries, the Federal Third Circuit Court of Appeals ruled that law enforcement agencies do need a probable-cause warrant to affix a GPS tracker to a target's vehicle. In that case, police attached a GPS device to the van of three brothers suspected of burglarizing the pharmacies without seeking a probable cause warrant. The brothers argued that the GPS evidence was inadmissbie because the police had not obtained a probable cause warrant as required by the Fourth Amendment. As the Washington Post reports:
The District Court agreed with the brothers, and the government appealed the case to the Court of Appeals for the Third District. On Tuesday, a three-judge panel upheld the lower court's ruling, finding that the actions of the police were "highly disconcerting" under a physical intrusion theory of the Fourth Amendment. The judges dismissed the government's arguments that the search was legal because the police had probable cause even if they didn't seek a warrant, saying "generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant."…
The appeals court also rejected a government argument that a GPS search might qualify for the automobile exception, in which police have greater leeway searching through vehicles. "A GPS search," the court found, "extends the police intrusion well past the time it would normally take officers to enter a target vehicle and locate, extract, or examine the then-existing evidence."
In a statement after the ruling, the American Civil Liberties Union attorney who argued the case, Catherine Crump declared:
"Today's decision is a victory for all Americans because it ensures that the police cannot use powerful tracking technology without court supervision and a good reason to believe it will turn up evidence of wrongdoing. These protections are important because where people go reveals a great deal about them, from who their friends and business associates are to what doctors they go to."
Crump is right and let's hope that the Supreme Court justices act to protect the Fourth Amendment privacy rights of all Americans when this case comes before them.
Disclosure: I am still a card-carrying member of the ACLU.