Obama Asks Supreme Court to Validate Warrantless GPS Tracking

In August, 2010, the D.C. Circuit Court of Appeals became the first federal appeals court to rule that prolonged GPS tracking of a suspect's vehicle without a warrant violated the Fourth Amendment. In doing so, it reversed a conviction and life sentence of an alleged major drug trafficker.

This week, the Obama Administration petitioned the Supreme Court for a writ of certiorari in the case, asking it to find neither probable cause nor a warrant is required. You can read the petition, which has the circuit court's opinion attached, here. [More...]

Among the reasons DOJ wants to avoid getting a warrant: it wants police to be able to use the device at the beginning of an investigation, to help them establish probable cause (which is needed for search warrants, wiretaps and indictments.)

The court of appeals’ decision, which will require law enforcement officers to obtain a warrant before placing a GPS device on a vehicle if the device will be used for a “prolonged” time period, has created uncertainty surrounding the use of an important law enforcement tool. Although in some investigations the government could establish probable cause and obtain a warrant before using a GPS device, federal law enforcement agencies frequently use tracking devices early in investigations, before suspicions have ripened into probable Cause. The court of appeals’ decision prevents law enforcement officers from using GPS devices in an effort to gather information to establish probable cause, which will seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism, and other crimes.

The Justice Department is concerned that requiring a warrant and probable cause for GPS devices may have a spillover effect on other law enforcement techniques that don't currently require a warrant: "Pen registers, repeated trash pulls, aggregation of financial data, and prolonged visual surveillance" among them.

DOJ says the issue is ripe for the Supreme Court because there's a split in the circuits, as the 7th and 9th Circuits have ruled prolonged GPS monitoring of a vehicle is not a search within the meaning of the Fourth Amendment.

While the petition mentions a few state court rulings in its favor, I didn't see any mention of rulings by courts in Delaware, New York, Oregon and Massachusetts that have found GPS devices do require warrants.

The Court of Appeals got it right when it ruled:

Society recognizes Jones‘s expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation. As we have discussed, prolonged GPS monitoring reveals an intimate picture of the subject‘s life that he expects no one to have — short perhaps of his spouse. The intrusion such monitoring makes into the subject‘s private affairs stands in stark contrast to the relatively brief intrusion at issue in Knotts; indeed it exceeds the intrusions occasioned by every police practice the Supreme Court has deemed a search under Katz....

The individual expectation of privacy has become the exception, rather than the rule. Like license plate readers, toll transponders and video cameras with face-recognition technology, with GPS, law enforcement is turning us into "an always-on, surveillance society."

The unfortunate notion that electronic surveillance of cars and people is acceptable and routine has spilled over to the business and the public. Here's a company hawking its GPS devices for businesses to put on employees' vehicles to track their movements and "idling time." Or these ads for GPS devices to track your children:

Introducing the new Amber Alert GPS technology that was designed to answer the all-important question, “Where Is My Child?”

...With information being sent every 60 seconds you’ll be able to see the location of your child wherever they are. Their movement is presented on a live map showing where they are, where they have been and even where they may be headed.

...Only your imagination limits the uses of this amazing and efficient new GPS child locator technology.

What a slippery slope this is.

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  • Display: Sort:
    Hell, why not just microchip everyone now (5.00 / 2) (#1)
    by Dadler on Sat Apr 16, 2011 at 09:40:51 PM EST

    Slippery cliff is more like it.  Thanks as always for posts like this.

    I'm so glad we elected a Democratic (5.00 / 6) (#2)
    by shoephone on Sat Apr 16, 2011 at 10:08:29 PM EST
    president to beat back the unconstitutional practices of the Bush administration.

    Oh, wait...

    A seamless transition: (none / 0) (#10)
    by KeysDan on Sun Apr 17, 2011 at 09:34:10 AM EST
    John Ashcroft, Alberto Gonzales, Michael Mukasey, and Eric Holder.  

    I'm getting tired of all of it too (5.00 / 1) (#4)
    by Militarytracy on Sun Apr 17, 2011 at 08:36:34 AM EST
    And it won't be long at all before people who really are "up to something" will simply use different forms of transportion in order to deal with GPS tracking of a single privately owned vehicle.  But everyone will have lost right to privacy.  I really hate the tracking apps of cell phones too.  I was at my daughters some weeks ago having coffee outside when one of her friends came over.  While she was talking to my daughter she out loud that she wondered where her boyfriend was and she grabbed her phone and punched a few buttons and said, OH....he's blah blah blah.  Then she giggled and said that she had connected his phone to a tracking app and he doesn't know.  It's just weird and violating to me.

    I can see the (5.00 / 1) (#15)
    by dead dancer on Sun Apr 17, 2011 at 09:50:45 AM EST
    next major app as the "Am i being GPS'd" app. Can inform you if your car or your phone is being used as a tracking device. You know, for when your in another one of those trusting relationships i.e. Me and my gov; Me and my bf.

    I should get on that right away, but then i would need a smart phone. My dumb phone suites me just fine.


    Trust? (none / 0) (#6)
    by mmc9431 on Sun Apr 17, 2011 at 08:52:39 AM EST
    What will people do when someone switches their GPS and they find themselves in trouble!

    Criminals will always find a way of getting around the law. Law enforcement doesn't have a monopoly on technology.

    As for the girl at your coffee, Good Luck to her. If there's no trust in a relationship, you might as well abandon ship.


    It seems like the latest game (none / 0) (#8)
    by Militarytracy on Sun Apr 17, 2011 at 09:23:47 AM EST
    sneaking the tracking app onto your partners phone.  The phone you are attempting to track asks for permission to allow it, but if someone is in the shower and you have their cell phone in hand how would they ever know that you had done it?

    It's a stalker's dream. (5.00 / 3) (#35)
    by caseyOR on Sun Apr 17, 2011 at 04:56:42 PM EST
    God help the woman who's former husband/boyfriend latches on to this technology, and tracks her every move. Bad enough if he didn't knock her around, but I shudder to imagine this tool in the hands of an abuser.

    Thanks to Ben Masel I know to remove the battery from my cell phone if I do not want it to be tracked. Of course, as soon as I put the battery back in my location is revealed. Still, even if whomever knows where I started and where I ended up, they won't know how I got there.


    Good reaason to have phone (5.00 / 1) (#44)
    by Chuck0 on Mon Apr 18, 2011 at 02:49:47 PM EST
    that is just a phone. Like me. My cellphone is a phone, not an entertainment device, no GPS, it has a camera, I've never used it. I have all text messages blocked as well. Want to communicate with me? CALL ME.

    There are times (none / 0) (#11)
    by mmc9431 on Sun Apr 17, 2011 at 09:38:33 AM EST
    When ignorance is bliss!

    I would think that (none / 0) (#12)
    by jimakaPPJ on Sun Apr 17, 2011 at 09:46:48 AM EST
    the phone in which the tracking application had been installed would show that under "Settings and Tools" or some such function.

    My 5 year old Samsung (none / 0) (#13)
    by jimakaPPJ on Sun Apr 17, 2011 at 09:49:36 AM EST
    under Phone Settings has a selection:

    4. Location

    (select one)

    Location On

    E911 Only

    I think I will ask my Verizon Rep what that means.........


    If there is such a way to find out (none / 0) (#18)
    by Militarytracy on Sun Apr 17, 2011 at 10:56:27 AM EST
    Should we all check our cell phones everyday to make certain nobody has done this to us? Should I do it weekly or monthly right after I do my breast self examination?  Nobody should be able to do that to anyone as easily as they can right now.  I like the slogan Live Strong a lot better than I like the slogan Live Paranoid.

    Well, it isn't hard to find out (none / 0) (#19)
    by jimakaPPJ on Sun Apr 17, 2011 at 11:13:07 AM EST
    just go to Settings & Tools and there should be an entry "Phone Settings" or something similar. I am sure your provider can give you exact instructions.

    There is also a Security setting that you can use to lock your phone when not in use. Most people don't seem to know about it or don't want to be bothered...

    BTW - Have you noticed that black SUV at the end of the street??


    (Have a nice Sunday, MT!)


    And so ... (5.00 / 2) (#9)
    by Robot Porter on Sun Apr 17, 2011 at 09:33:46 AM EST
    George W. Obama continues along his appointed path.  I guess the pot of gold was just too big to resist.

    So, let me see if I have this straight... (5.00 / 3) (#14)
    by Anne on Sun Apr 17, 2011 at 09:50:17 AM EST
    The Obama administration wants the Court to make constitutional something that would give the government a "head start" - allow them to go fishing around in the lives of private citizens in the hope they can "hook" someone - at which point, armed with this information, they will then sort of pick up with following the law where they left off?

    How long before the government feels the need to ask the Court to allow them to disregard the restrictions in the next step in the process?

    GPS tracking will soon be obsolete. (none / 0) (#36)
    by MO Blue on Sun Apr 17, 2011 at 04:56:54 PM EST
    Drones will be the new "in" thing to use here in the good old U.S. of A. Spy Drones in U.S.

    Drones don't work as well as GPS (none / 0) (#40)
    by Militarytracy on Sun Apr 17, 2011 at 06:16:33 PM EST
    as long as you can prove it is on what you are tracking :)

    Didn't you get the memo? (none / 0) (#43)
    by NYShooter on Sun Apr 17, 2011 at 09:43:55 PM EST
    "If you don't have anything to hide........."

    Democrats are so butch! (5.00 / 0) (#16)
    by mmc9431 on Sun Apr 17, 2011 at 10:09:03 AM EST
    Democrats are so afraid of being labeled "weak" that they continually try to out hawk the Republicans on war. They are also just as tough on crime!

    I guess standing up for the Constitution is now a weakeness?

    Where are the tea baggers that are screaming over big government? If they are really serious about government over reaching, this issue should send them into a frenzy.

    The Constitution is just a d@mn piece of (5.00 / 4) (#17)
    by MO Blue on Sun Apr 17, 2011 at 10:26:34 AM EST
    paper. So saith George W. Bush and confirmed by the actions of Barack Obama.

    Exactly, Tracy (5.00 / 3) (#28)
    by Zorba on Sun Apr 17, 2011 at 02:46:59 PM EST
    "They who can give up essential liberty to obtain a little temporary safety, deserve neither liberty nor safety."  Thank you, Benjamin Franklin.  He was right then, and he's still right.  When did Americans become such a bunch of scared little babies?

    I blame it on the baby boomers. (none / 0) (#45)
    by Chuck0 on Mon Apr 18, 2011 at 02:51:23 PM EST
    Spoiled whiners, the lot of them. Big damn scaredy cats as well.

    Please stay on topic (3.50 / 2) (#41)
    by Jeralyn on Sun Apr 17, 2011 at 06:42:32 PM EST
    It's GPS tracking and civil liberties. Not gas prices. And Harry is warned to stop referring to PPJ and making subthreads about the two of them. Last warning, Harry or you're going into time out.

    Bleak Future (none / 0) (#3)
    by mmc9431 on Sun Apr 17, 2011 at 08:21:36 AM EST
    Politicians played on the fear of terrorism to make these very Un-American laws palatable to the public. After all, they were designed to protect us from the evil estremists.

    What I can't believe is that the American public didn't know that these laws would be corrupted and find their way into our everyday life.

    The comment about micro chips isn't that far away. After all, we need to protect these children and insure that they are U.S. citizens! (snark)

    Thanks as always for the feedback :-) (none / 0) (#42)
    by Harry Saxon on Sun Apr 17, 2011 at 06:44:45 PM EST