Tuesday, May 3, 2011

Seventh Circuit Rejects Argument That Police Need Warrant For GPS

The Seventh Circuit stated that use of GPS devices by law enforcement is a “Fourth Amendment frontier.”  The court then rejected a claim that a warrant is required before the police may place a GPS device on a car.  The case is U.S. v. Cuevas-Perez.
In this case, federal and state law enforcement officers suspected that the defendant was involved in a drug distribution operation. As part of the investigation, they attached a GPS tracking unit to the defendant’s Jeep. 

The most notable aspect of the decision is the court’s rejection of the argument that GPS devices are “different and more intrusive than those addressed in prior [Supreme Court] cases.”  The court said, “we do not consider this particular advancement to be significant for Fourth Amendment purposes in general: real-time information is exactly the kind of information that drivers make available by traversing public roads. The historical data gathered and stored on comparatively primitive GPS devices is actually less akin to the publicly-exposed information on which the Fourth Amendment permissibility of GPS tracking is based.” 

I have previously argued that the Supreme Court’s cases were inapplicable because they were based on old technology.  The concurring judge was more explicit in rejecting this argument:  “Make no mistake, concerns over privacy in the information era may make it appropriate to reconsider the principles used for determining whether law enforcement activity constitutes a search within the Fourth Amendment's meaning. The dissenting opinion cogently makes the point. For now, however, the path for lower courts is clear: the holding of Knotts [the old Supreme Court decision] governs GPS monitoring. The practice of using these devices to monitor movements on public roads falls squarely within the Court's consistent teaching that people do not have a legitimate expectation of privacy in that which they reveal to third parties or leave open to view by others.” 

Judge Wood, dissenting, argues:  “Prolonged GPS surveillance, like a surreptitious wiretap, intrudes upon an individual's reasonable expectation of privacy by revealing information about her daily trajectory and patterns that would, as a practical matter, remain private without the aid of technology. This sort of constant monitoring at a personal level gives rise to precisely the "dragnet" effect the Supreme Court identified in Knotts . . .” 

An excellently written decision on both sides.  I highly recommend that anyone interested in this issue read the whole thing.

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