DOJ to Supreme Court: Approve warrantless GPS surveillance

In a court of law, the word "reasonable" is all important, what a reasonable person would do, or feel, or expect, or how a reasonable person would react to a situation. If it's not reasonable, then expect to lose. Is it reasonable to expect law enforcement, with no warrant, to shoot a GPS tracking dart at your vehicle to better monitor your movements?

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The Obama administration has asked the Supreme Court to resolve a conflict among federal appellate courts over the need for a warrant before attaching a GPS device to a suspect's vehicle to covertly track a person. In fact, the Justice Department said that a person traveling on public roads has "no reasonable expectation of privacy" in his movements, even if 'scientific enhancements' are used to help law enforcement with the tracking.

Last year, the U.S. Court of Appeals for the D.C. Circuit reversed the conviction of a drug dealer, Antoine Jones, since the government had violated Jones' privacy by covertly tracking his movements by GPS, and then using that data for search warrants of those locations to find drugs. The Justice Department said that the government surveillance by GPS in the Jones' case "raises no concerns about mass, suspicionless GPS monitoring."

Also in the 121-page DOJ petition, one of the arguments the Justice Department used was cost, as in the cost to install a GPS device being insignificant because "the Los Angeles Police Department can now affix a GPS device to a passing car simply by launching a GPS-enabled dart." The sources of this information included this statement, "The darts consist of a miniaturized GPS receiver, radio transmitter, and battery embedded in a sticky compound material.  When fired at a vehicle, the compound adheres to the target, and thereafter permits remote real- time tracking of the target from police headquarters."

Let's hold it right there, on those two different thoughts of raising no concerns about suspicionless GPS tracking and the ability for authorities to "just tag the suspect vehicle, then fall back and wait." In 2006, the LAPD got excited about GPS-enabled darts by StarChase. In a 2010 article, StarChase claimed that law enforcement using their product could target the adjustable laser dot from the aimer, launch the dart to the suspect vehicle, and immediately get GPS data. Furthermore, quoting the Arizona Highway Patrol, "The crooks haven't been aware they've been tagged. Even if they do discover it, it takes some real effort to remove the projectile."

If people can be tagged with a GPS-enabled dart in about a blink, and have no idea their movements on public streets are being tracked, then it seems reasonable that the warrantless surveillance violates the Fourth Amendment. In fact, it sounds a bit like stalking; if permitted to be done without a warrant, then it could easily be done on a large scale and without true suspicion.

Despite three other courts of appeal ruling that law enforcement does not need a warrant to use GPS tracking on a vehicle, the D.C. appellate court did not agree. Inside GNSS reported that the D.C. court of appeal wrote, "Continuous human surveillance for a week would require all the time and expense of several police officers, while comparable photographic surveillance would require a net of video cameras so dense and so widespread as to catch a person's every movement, plus the manpower to piece the photographs together...A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there."

But the Justice Department said the appellate ruling "would prevent a widespread police practice of GPS-aided surveillance." The legal brief states, "Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States. The court of appeals' decision seriously impedes the government's use of GPS devices at the beginning stages of an investigation when officers are gathering evidence to establish probable cause and provides no guidance on the circumstances under which officers must obtain a warrant before placing a GPS device on a vehicle."

The Blog of LegalTimes quoted Jones' appellate lawyer as saying, it's "regrettable the Obama administration, which touted itself as a breath of fresh air, seems to be resistant when it comes to advancing the Fourth Amendment's interest in protecting a citizen's right to privacy."

I'm certainly not an attorney, but it seems reasonable to expect the Supreme Court to uphold our Constitution and Fourth Amendment rights, including the right not to worry about warrantless surveillance in the form of GPS tracking when there is not even probable cause. Just because the technology exists does not mean it should be used against the people to invade their privacy as if everyone is a criminal. The next thing you know, the authorities will want warrantless wiretaps to search our email. Oh wait...

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