The United States Supreme Court heard arguments in a case raising the issue of whether GPS monitoring violates an individuals Fourth Amendment right to be free from unreasonable searches and seizures under the Constitution. The case is United States v. Antoine Jones, and the filings from the case can be found on the Scotus Blog.
The criminal defense lawyers in the case allege that Jones’ Fourth Amendment right to be free from unreasonable searches and seizures was violated when federal agents put a GPS tracking device on his car without his consent. The tracking resulted in the defendant being charged with federal drug charges. To read an excellent commentary on the case click here to read Shannon Bream’s Article for Fox News.
The case addressed the issue of whether a warrant must be obtained under the Fourth Amendment before the State can monitor someone through GPS surveillance. In the case, the police obtained a warrant to monitor the activity of defendant Jones; however, the warrant expired, meaning that no valid search warrant authorized the GPS monitoring. The federal agents in the case installed a GPS tracking device on the defendant’s car without his knowledge or consent.
The transcript of the oral argument did not reveal a clear direction that the court is likely to take in the case. Click here to read the transcript of the oral argument. The Court seemed troubled by the idea that the police could install a GPS tracking device on anyone’s vehicle. However, the Court’s questioning suggested that this may not necessarily be a 4th Amendment violation because there is no search or seizure. As to the issue of whether the GPS monitoring constituted a search, some of the questioning from the Justices suggested that because the police could monitor a person with constant surveillance, the GPS simply assists the police to make them more efficient.
Justice Sotomayor asked if under the governments theory the government could monitor every person through their cell phone. The Government suggested that may be unconstitutional because cell phones are kept on an individuals person and monitoring someone through their clothing might be unreasonable under the Fourth Amendment.
The defense lawyers argued that the GPS tracking constituted a search because of the large amount of data that is obtained. Justice Scalia suggested that the GPS monitoring while it may be unreasonable, may not constitute a search or seizure under the court’s case law.
The court raised the question if it is okay for police to monitor someone through cameras than why is GPS monitoring not the same type of surveillance. Justice Scalia emphasized that the unreasonable prong does not take effect unless there is a search and the case law has held that there is no search when everything done is open to the public. The criminal defense attorney proposed that police should be required to get a warrant to use GPS tracking, absent exigent circumstances because of the GPS capacity to collect data that you could not realistically get.
As a Massachusetts criminal lawyer, I would expect that the court will hold that the installation of GPS tracking is not a search or a seizure based on the Court’s current case law. While I disagree with this decision, under the United States Supreme Court’s case law defining these terms and based on a view of the oral argument, it appears that the justices were heading in that direction.
Criminal defense lawyers should continue to argue that GPS searches violate the Massachusetts Declaration of Rights which in many cases has been interpreted to provide individuals with greater liberty than the federal constitution. While I believe that the court is going to leave GPS monitoring to the legislature, the court should hold that the attachment of the GPS constitutes a search and seizure as the Government is taking individual data without the consent of the individual. The act of installing the device constituted a seizure that should require probable cause and a warrant issued by a magistrate.