Government Claims in California That GPS Tracking Is Less Intrusive Than Traditional Surveillance.

A California Appeals Court decision contains a novel argument in support of the legality of warrantless GPS tracking by law enforcement.

The case is People v. Scott.  The Defendant was charged with 11 counts of arson of a forest arising out of a series of fires in the Jacks Peak area of Carmel in 2006 and 2007.

During the investigation, the police installed a GPS tracking device under the rear bumper of defendant's Oldsmobile.  The device was installed while the defendant and his wife were at dinner.  The defendant had been identified as a suspect based on the video surveillance. 

Details about the law on GPS tracking can be found here.  Short version:  some courts have allowed GPS tracking without a warrant on the theory that the GPS device reveals only what the police could observe through traditional, legal, surveillance.

The issue I want to focus on involves the defendant’s argument that the installation of the GPS device here was more of a disturbance than traditional visual surveillance.  The court rejected this argument.  The court noted that the police “did not open any doors, the hood, the trunk, or any containers on the car to install the GPS device.” 

The Court noted that decisions requiring a warrant before the police could use a GPS device were based on concerns “about the amount of data that GPS devices can record and store as compared to older tracking technology, which in turn has the potential to reveal an enormous amount of personal information about the citizen.”  The Court rejected this argument because “that is not the way the officers used the GPS device in this case.”  Instead of using the GPOS device “as a substitute for traditional law enforcement efforts,” the police had “eight to 10 officers in cars, following defendant and observing his activities.”  Instead of using the “the GPS device to track all of defendant's activities,” the police relied “on the GPS data when the officers who were conducting surveillance on the ground lost track of defendant because of his erratic driving habits or when a fire occurred.”  The court concluded “that the GPS tracking evidence here did not reveal anything that traditional surveillance would not have provided, and therefore did not constitute a search [requiring a warrant].”

  

Here is the most interesting part.  The court also gave credit to a prosecution argument that GPS tracking is less intrusive that traditional surveillance, because “it did not provide information regarding what defendant did at a particular location, who he was with, the nature of the location he visited (i.e., whether it is was a home, a business, or woodlands) or what he did inside his car.”