Free Markets, Free People

GPS

What part of the 4th Amendment does law enforcement not understand?

I don’t know about you, but this seems such a clear thing to me.  If law enforcement is going to put any sort of a tracking device on a citizen’s vehicle, they need to obtain a warrant first.  See 4th Amendment:

The Supreme Court on Monday ruled unanimously that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and monitored its movements for 28 days.

[…]

Walter Dellinger, a lawyer for the defendant in the case and a former acting United States solicitor general, said the decision was “a signal event in Fourth Amendment history.”

“Law enforcement is now on notice,” Mr. Dellinger said, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

Specifically:

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority. Chief Justice John G. Roberts Jr. and Justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor joined the majority opinion.

“It is important to be clear about what occurred in this case,” Justice Scalia went on. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

The government, in this case, had put a GPS device on the target’s vehicle without a warrant, monitored it for 28 days and then used that information at his trial (he was convicted on cocaine trafficking charges and given a life sentence).

The reason I think this should have been a no-brainer for LEOs is the fact that the SCOTUS decision was unanimous. 

When the case was argued in November, a lawyer for the federal government said the number of times the federal authorities used GPS devices to track suspects was “in the low thousands annually.”

Vernon Herron, a former Maryland state trooper now on the staff of the University of Maryland’s Center for Health and Homeland Security, said state and local law enforcement officials used GPS and similar devices “all the time,” adding that “this type of technology is very useful for narcotics and terrorism investigations.”

Monday’s decision thus places a significant burden on widely used law enforcement surveillance techniques, though the authorities remain free to seek warrants from judges authorizing the surveillance.

Ok, get a freaking warrant first. 

What this decision does is uphold a Constitutional right that has been under assault for quite some times.   The “envelope stretching” that is not uncommon as new technology offers new methods of surveillance and monitoring.  The watchword for LEOs should be “when in doubt, get a warrant”.  And live by the document you’ve sworn to uphold and defend.

~McQ

Twitter: @McQandO

Why no warrant?

You go to get an oil change and while your car is up on the rack, the mechanic notices a strange wire.  It leads to some sort of device that is not a part of your car.  You pull it off, take pictures and put it on the internet trying to get some help identifying the object, and the next thing you know, the FBI is at your door demanding you return their GPS device.  You were under surveillance, something the FBI needed no probable cause or a warrant to do.

Of course the point is this isn’t something that occurred in China or some banana republic.  It happened here.

I’m not saying that perhaps their isn’t a need for surveillance or that the use of a GPS tracking device wouldn’t be a good way to do it.  What I’m questioning is the lack of due process before it is done:

One federal judge wrote that the widespread use of the device was straight out of George Orwell’s novel, "1984".

"By holding that this kind of surveillance doesn’t impair an individual’s reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives," wrote Alex Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, in a blistering dissent in which a three-judge panel from his court ruled that search warrants weren’t necessary for GPS tracking.

But other federal and state courts have come to the opposite conclusion.

Law enforcement advocates for the devices say GPS can eliminate time-consuming stakeouts and old-fashioned "tails" with unmarked police cars. The technology had a starring role in the HBO cops-and-robbers series "The Wire" and police use it to track every type of suspect — from terrorist to thieves stealing copper from air conditioners.

So the argument is it is convenient for law enforcement?  While I don’t normally agree with 9th Circuit judges, I certainly agree with Kozinski on this one.  And why is it such a bother for the FBI or any law enforcement agency to have to get a warrant to track a suspect. Probable cause.  Due process. Those are deeply embedded concepts that are designed to protect individual liberty.  In effect, Kozinski is exactly right – as it stands, law enforcement literally is empowered to track every single person in the US without their permission.

That isn’t the country steeped in individual liberty that I grew up to expect.

~McQ

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