Kathy Posner

The Fourth Amendment of the U. S. Constitution 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, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” So does the use of a GPS device without a warrant violate a person’s rights under this amendment?

Currently different state and federal courts cannot agree on whether the use of GPS without a warrant violates the Fourth Amendment so the United States Department of Justice (DOJ) has petitioned the Supreme Court for a writ of certiorari asking them to step in and rule.

The 121 page filing can be summed up by the question as presented:

Question Presented:
“Whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.”

The DOJ wants law enforcement officers to be able to side-step a warrant for a GPS attachment because tracking an alleged criminal’s movements could help them establish probable cause. Probable cause is what is necessary to obtain search warrants, wiretaps and then indictment.

Last August, the U.S. Court of Appeals for the D.C. Circuit vacated the life sentence of Antoine Jones ruling the government violated Jones' privacy rights in clandestinely using GPS devices to track his movements for a month in a drug trafficking investigation. Previously the 7th and 9th Circuit Courts ruled that prolonged GPS monitoring is not a search within the interpretation of the Fourth Amendment.

One of the reasons that the DOJ wants the Supreme Court to decide which Circuit Court is correct is because the D.C. Circuit’s decision conflicts with the Supreme Court’s “longstanding precedent that a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, even if ‘scientific enhancements’ allow police to observe this public information more efficiently.”

What I find so interesting in the various arguments for and against the use of GPS without a warrant is that an individual’s expectation of privacy in public is virtually impossible. With street cameras, license plate readers, toll transponders, video cameras with face-recognition technology, cell phone tracking towers, etc., etc., one can be tracked almost anywhere at any time anyway.

Why would law enforcement need a warrant to covertly track someone, when everybody is already being overtly tracked?

Hansel and Gretel left a trail of bread crumbs to find their way home; now one’s cell phone can navigate for them. You won’t even need the cops.

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