By on November 26, 2010

A divided federal court last week ruled that police could not use GPS devices to track a suspect without first obtaining a warrant. Nine judges of the US Court of Appeals for the DC Circuit considered the case of Antoine Jones who had been arrested on October 24, 2005 for drug possession after police attached a tracker to Jones’s Jeep — without judicial approval — and used it to follow him for a month.

A jury found Jones not guilty on all charges save for conspiracy, on which point jurors hung. District prosecutors, upset at the loss, refiled a single count of conspiracy against Jones and his business partner, Lawrence Maynard. Jones owned the “Levels” nightclub in the District of Columbia. Jones and Maynard were then convicted, but a three-judge panel of the DC Circuit ruled that the US Supreme Court specifically stated in a 1983 case regarding the use of a beeper to track a suspect that the decision could not be used to justify twenty-four hour surveillance without a warrant. In this finding, the DC judges split with the Ninth and Seventh Circuits, which have no problem with police attaching tracking devices on any automobile at any time.

Those circuits, and the prosecution in the Jones case, argued that Jones was driving on public streets. Therefore, the GPS units merely augmented the senses of a police officer who would have been free to observe Jones’s movements. In an August decision, the three-judge panel disagreed.

“We hold the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil,” Judge Douglas H. Ginsburg wrote. “It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.”

As a person would not expect the whole of his movements to be recorded, he has an expectation of privacy, the panel argued. This triggers the Fourth Amendment requirement for the police to obtain a warrant.

“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; rather, he expects each of those movements to remain disconnected and anonymous,” Ginsburg wrote.

The full court decided to uphold the three-judge panel’s decision throwing out the charge brought against Jones because the evidence was obtained in violation of the Fourth Amendment.

A copy of the en banc decision is available in a 90k PDF file at the source link below.

Source: PDF File US v. Jones (US Court of Appeals, DC Circuit, 11/19/2010)


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18 Comments on “Federal Appeals Court Rules Against Warrantless GPS Tracking...”

  • avatar

    “Augmenting an officer’s ability to observe”.

    That will come to include all kinds of technology including see through walls imaging unless this warrantless snooping is stopped.

    Do a little research on micro drones.

    For those that don’t mind being groped by the TSA, you’re probably ok with the police being able to invoke an override command and get the view through the camera lens in your phone, PC, laptop, etc.

  • avatar

    That’s big. There’s been a few cases that have hinged on warrentless tracking. Does this mean that the descision is final?

  • avatar

    Alex Kozinski, chief judge for the Ninth Circuit, deserves a shout-out in any discussion of this issue, for his argument (against the majority of his peers) that people have a legitimate expectation that police officers won’t crawl under their cars in their driveways and plant GPS devices:

    “The very rich will still be able to protect their privacy with the aid of electric gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling. Open driveways, unenclosed porches, basement doors left unlocked, back doors left ajar, yard gates left unlatched, garage doors that don’t quite close, ladders propped up under an open window will all be considered invitations for police to sneak in on the theory that a neighborhood child might, in which case, the homeowner “would have no grounds to complain.”
    There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don’t live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that’s not how we and our friends live. Yet poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it.”

  • avatar

    You know, if there’s a huge eye in the sky, shouldn’t you be running toward it, so you can get behind it, rather than away from it, where it can see you no matter how far away you are?

    The same principle goes for movies where people try to get away from trains by running frantically down the track in front of them. Seriously – I don’t care if you -are- the hero. If you’re that stupid, you deserve a heapin’ helpin’ of steel wheelin’ slicin’.

    • 0 avatar

      They are running for the horizon! 

      (Unless that was one of the natural laws that was upset, namely the spherical form of celestical bodies had suddenly become planar.) 

      And in any case, no need for worry, because it seems, according to the drawing, that the atmosphere around these poor ill-equipped folks has disappeared.  Game over.

      How odd, after reading a day ago, an article about Dick’s wife, and then reading the Wiki entry on him, and his paranoia (perhaps he was paranoid about the future and not quite sure when it would arrive), that this pic should appear.

  • avatar

    I had an awesome comment written, but TTAC said, “Please type a comment” – and because it’s clever AJAX, it was gone when I backed up.
    Fail. Any way we can pick the kind that doesn’t require us do be paranoid too, and select-copy everything we write before we hit submit?

    • 0 avatar

      Agreed.  This is the same work-around that I have to employ from time to time too … many of my most brilliant and pithy comments were lost (why do only the good ones seem to get lost?  btw, this semed to improve somewhat after i upgraded my internet connection…)

  • avatar

    Eye In The Sky is one of PKD’s better novels, by the way.

    • 0 avatar

      And I can’t find a Kindle edition of this novel — coincidence? I think NOT ;-)

      A good friend got me reading PKD 20 yrs ago, but I had to rid myself of boxes of cigarette-tainted paperbacks when I moved into this (small) house — So I bought a Kindle with the intent of re-reading lots of stuff (including PKD), but many Kindle versions of his (wonderful, but… concise) novels are $9 apiece – twice what I paid for the paperback versions that I trashed (sigh).

  • avatar

    Maybe the Supremes will uphold this 9-0 so that things like this won’t be a problem for a long time.

  • avatar

    However if you are a buy/here pay/here person who allowed the auto dealer to install a GPS tracker/automatic shutoff box to guarantee payment, there probably will be no problem with the police contacting the auto dealer to look into your driving patterns.

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