Fourth Amendment

Federal Appeals Court Rules That Cops Must Get Warrant for GPS Tracking



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.

NEXT: A. Barton Hinkle on How Special-Interest Laws Fuel Big Government

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  1. Disclosure: I am still a card-carrying member of the ACLU.

    You know who else was a card-carrying member of the ACLU?

    1. Michael Fucking Dukakis!

    2. Gen. Douglas MacArthur.

  2. “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”

    If I understand Scalia’s reasoning (no guarantee there), then the whole point of a “warrant” is that authorizes a gov’t agent to commit what would otherwise be a crime- trespass for a search warrant, assault and kidnapping for an arrest warrant, theft for an evidentiary seizure, up to murder for an death warrant. Yet isn’t “unauthorized access of a computer” also a crime akin to, if not a form of, trespass?

  3. …generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.

    Police break the law for the greater good (and convenience). How can you punish them when the intentions are so pure? (Punishment being a huge waste of tax dollars on a failed prosecution.)

  4. p: That’s the way I hope the Court is tending.

  5. For example, there was a story recently about Dick Cheney having his pacemaker changed to remove the wireless access capability. If someone accessed his pacemaker without permission- even if only to, say, reveal location information and not cause any harm- than that would a crime, and a very serious one at that- “unauthorized access to a computer” or in common parlance, hacking. So under Scalia’s thinking if the government wanted to remotely access Cheney’s pacemaker it would need a warrant (which seems rather obvious). The same reasoning, though, applies to a cell phone in my pocket as opposed to a pacemaker in my chest.

    1. Haven’t they ruled that any information that is not in your physical possession is fair game for the cops?

      1. In my hypothetical, this isn’t accessing third-party records, which you’re correct doesn’t require a warrant under current (stupid) jurisprudence. I’m talking about a scenario who the police wirelessly access files on your phone while it’s in your pocket. The third-party doctrine doesn’t apply there- though it would apply in the case of location information already obtained by the phone company (i.e. cell tower records)

        The “reasonable expectation of privacy” standard was in no small part invented to patch over the holes blown in the 4th Amendment by the third-party doctrine.

      2. Information is always in somebody’s possession (such as your cellular provider), thus, a warrant should be required if such party does not wish to disclose information. And since cellular providers are acting as agents for a client, they should refuse to disclose information without warrants, unless the client specifically authorizes (through a contract) the cellular provider to disclose information.

        1. I should also say, if the cellular provider becomes aware of specific information pertaining to a crime, then agency is out the window in that case. Which is why Edward Snowden was correct in disclosing NSA information, regardless of his original intentions, when he discovered unethical practices.

  6. This is excellent news.

  7. The Exclusionary rule is a classic example of the government solving a termite infestation by splashing lacquer on the wood. Ineffective, and ultimately counterproductive.

    The whole idea is that if the bad guy gets off because the good guy didn’t cross his i’s and dot his t’s, the good guy will has a sad.

    In reality, a cop doesn’t give a shit! He got his guy! He gets rewarded for the arrest, and everybody bitches about the dumbfuck judges, and they decide that all they need to do is testilie.

    So the innocent people harmed by such violations still suffer the harms, and the bad guys get off to behave criminally and nobody winds.

    It’s a problem that can be solved very simply: hold cops individually liable for violating civil rights. Sure a jury might award OJ a judgement of $1 payable by Fuhrman, but millions of dollars to the Ramseys. Make the judgements non-dischargeable in bankruptcy, and the sight of a few of their comrades living in soup kitchens will encourage the others.

    1. I read that as a case for adding additional police sanctions for violating the 4th Amendment, not so much as a case against the exclusionary rule. Even apart from encouraging police to follow the rules, the exclusionary rule is part of a fair trial. The harm it addresses is not the violation by which the evidence was obtained, but rather the harm that would be done to defendant’s fair trial rights if the evidence were allowed.

      1. How would a GPS record of a criminal’s movement preclude a fair trial?

        Evidence is evidence.

        The entire purpose of the 4th amendment is to protect non-criminals from state harassment. The exclusionary rule does nothing to further that purpose.

    2. Ya Tarran, there is always a possibility of termite in wooden furniture. It will be better, if we avoid buying wooden furniture or regular contact termite control service. The latest orange oil treatment is one the best method to deal with termite now a days.

  8. I’d like an app that showed all the locations of police cars based upon them being public property. Some towns already do this with snow plows. Attach GPS to cop cars? Imagine the screaming.

    1. I would imagine they already have GPS’s. But not so the little people can track them.

    2. There’s a ‘smart telephone’ application that users use to provide updates on the locations of law enforcement along roads. Although cops could easily input an update that they are not present in the location that they are in.

  9. Why the fuck did the federal appeals court even need to reiterate this, after the supreme court ruling?

    1. Because the prosecutor ignored the implications of the SCOTUS ruling, or decided it didn’t apply to the particulars of this case, and the defendant needed relief from this abuse of prosecutorial power.

      1. Fuck You That’s Why?

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