The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Federal Investigations and Privacy
No one can deny that data gathered from global positioning technology can be incredibly valuable in an investigation. Data acquired from location technology has helped solve murder, drug, robbery, and a slew of other investigations. Despite the potential benefits of this technology, one should not forget that all American citizens – even those suspected of criminal acts – are protected by the fourth amendment. However, as location tracking technology has grown more sophisticated, it has become increasingly difficult to define what constitutes an “unreasonable search.”
Defining “Search”
Katz v United States (1967), a Supreme Court case involving the use of an electronic listening device outside a phone booth, established that “a ‘search’ exists for Fourth Amendment purposes where (1) a person has a subjective expectation of privacy, and (2) society is willing to recognize the expectation of privacy as objectively reasonable.” Unfortunately, the question of where exactly a suspect has a “reasonable” expectation of privacy is often difficult to answer.
State Rulings
Individual states vary on this issue. In the 2001 California case People v Zichwic, the court ruled that “There can be no objectively reasonable expectation of privacy in what is regularly exposed to public view…. It does not amount to a search to… attach a tracking device, so long as a police officer does so from a place where the officer has a right to be.” However, in State v Jackson (2002), the Washington Supreme Court ruled that “the GPS device does not merely augment the officers’ senses, but rather provides a technological substitute for traditional visual tracking.” Because it is unlikely that a live officer would be able to maintain constant 24-hour surveillance of an individual, the court concluded that “citizens of this State have a right to be free from the type of governmental intrusion that occurs when a GPS device is attached to a citizen’s vehicle, regardless of reduced privacy expectations due to advances in technology.”
Federal Rulings
Federal law also remains unclear on the issue, although there appears to be a national trend toward allowing a more liberal use of global positioning technology in federal investigations. The following are a few noteworthy cases that have occurred in the past three decades:
Overview
A precursor to the global positioning system, a beeper is “a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver.” Unlike GPS, it can only be tracked from a short distance. Beepers are also only helpful for live tracking, as “they neither collect nor store data.”
In this Minnesota case, a former 3M employee and two accomplices were suspected of purchasing chloroform in order to manufacture controlled substances. With the consent of the Hawkins Chemicals Co, the manufacturer from which Tristan Armstrong (one of the codefendants) had been purchasing chloroform, federal officers installed a beeper inside a container of chloroform without obtaining a warrant. Officers later used the beeper to identify the location of the drug laboratory containing the container of chloroform, which ultimately led to the defendants’ arrests.
Implications
During the appeals process, the court established that “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” The use of a beeper in this case did not invade any “legitimate” expectation of privacy, and thus did not constitute a search or seizure.
Overview
In 1980, a Drug Enforcement Administration (DEA) agent learned that James Karo, Richard Horton, and William Harley were ordering ether from a government informant in order to extract cocaine from clothes imported into the United States. After obtaining a court order, the DEA installed a beeper into a can of ether and, with the informant’s permission, replaced one of the cans of ether with their own. Officers then used the beeper to track the can through a series of locations, including the houses of Karo and Horton and two storage facilities containing lockers jointly rented by Horton and Harley. The beeper eventually arrived at house rented by Horton, Harley, and one other suspect. By monitoring the beeper, officers determined that the beeper was in the house, and obtained a warrant to search the house in part based on the information provided by the beeper. Cocaine was confiscated, and Horton, Harley, and two other suspects were arrested.
Implications
The Court of Appeals determined that the informant’s consent was sufficient to validate the initial installation of the beeper. The monitoring of the beeper on “public highways, or in other places where the container’s owner has no reasonable expectation that its movements will not be tracked without his consent… infringes on no reasonable expectation of privacy” (See United States v Knotts). However, the Court invalidated the information gathered from monitoring the beeper in private homes, stating that the “monitoring of a beeper in a private residence, a location not opened to visual surveillance, violates the Fourth Amendment rights of those who have a justifiable interest in the privacy of the residence.” Thus, the monitoring of the beeper amounted to a search and seizure and therefore required a warrant. United States v Karo set a precedent that distinguished public spaces, which provide no reasonable expectation of privacy, from private spaces.
Overview
With the new millennium came much more sophisticated means of tracking. In United States v Garcia, police officers affixed a Global Positioning System (GPS) tracking unit onto the car used by Bernardo Garcia, who they suspected of crimes relating to the manufacture of methamphetamine. The GPS unit used was a commercially available magnetized device that ran on two AAA batteries and could be easily mounted on the outer shell of a vehicle. With the tracking software included in the unit, one could “accurately determine where a person traveled, how fast they drove, where they stopped and for how long.” The beepers used in Knotts and Karo could only give investigators a rough approximation of the distance from the item being tracked and also only worked in limited ranges. The GPS unit, on the other hand, “accurately determines the location of the device within 2.5 meters and records this data every second.” To use a beeper, officers had to follow the item in real time, whereas the GPS tracker enabled officers to affix the unit and later retrieve it for the driving history since the unit had been attached.
The Court of Appeals denied Garcia’s claim that the use of the GPS unit without a warrant constituted an unconstitutional search based on the precedents set in United States v Knotts, noting that the use of GPS was simply a more efficient and practical means of gathering data that an officer physically tailing the suspect could have gathered. This claim raised issues of potential abuse of the technology: “One can imagine the police affixing GPS tracking devices to thousands of cars at random…. It would be premature to rule… that it could not be a search because it would merely be an efficient alternative to hiring another 10 million police officers to tail every vehicle on the nation’s roads.” However, because the officers in the case did not appear to be engaging in mass surveillance, and so that possibility was not shown as reason enough to overturn Garcia’s conviction.
Implications
United States v. Garcia made a clear distinction between technological possibility and reality. Although GPS “poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive,” it is not reason enough to disallow the use of GPS. The court’s decision suggests that GPS may not become a serious Fourth Amendment issue unless “government someday decide[s] to institute programs of mass surveillance of vehicular movements.”
Overview
In 2004, the Federal Bureau of Investigation began investigating Antoine Jones and Lawrence Maynard for narcotics violations. Officers employed a number of surveillance techniques including installing a GPS device on Jones’ vehicle, which tracked his movements for twenty-eight days. Maynard and Jones were later convicted of conspiracy to distribute and to possess with intent to distribute cocaine in 2008. During the joint appeals process, however, the DC Circuit overturned Jones’ conviction “because it was obtained with evidence procured in violation of the Fourth Amendment.”
In national security considerations, the “mosaic theory” suggests that “individually harmless pieces of information, when combined with other pieces, can generate a composite – a mosaic – that reveals national security vulnerabilities.” Likewise, the Court of Appeals noted that in regards to privacy, “the whole may be more revealing than the parts.” The court argued that an individual does not actual reveal his traveling patters for sustained periods of time to the public. Thus, while individual trips are open to the public, continued monitoring for longer periods (like the four weeks used in this investigation) suggests an invasion of privacy and therefore constitutes an unreasonable search.
Implications
United States v Maynard introduced a complication regarding federal use of location technology. It ignored the simple precedent of public vs. private and introduced the consideration length of observation without clearly defining an allowable duration. Although the case may appear to be a victory for opponents of warrantless GPS tracking, its ambiguity may complicate future cases.
Overview
In 2008, federal Immigration and Customs Enforcement (ICE) agents began to suspect Juan Cuevas-Perez of participating in a drug distribution operation. In 2009, officers attached a GPS unit to Cuevas-Perez’s car while it was parked in a public space without first obtaining a warrant. Shortly afterward, Cuevas-Perez began a trip. ICE agents used the data sent by the GPS to track the suspect through New Mexico, Texas, Oklahoma, Missouri, and into Illinois, amounting in roughly sixty hours of surveillance. After being alerted by ICE agents, Illinois police officers pulled over the suspect on a minor traffic violation, which allowed the officers to search his vehicle. During the search, nine packages of heroin were unearthed. Cuevas-Perez was then charged with possession with intent to distribute heroin.
Implications
During both the pre-trial suppression hearing and the appealing process, Cuevas-Perez attempted to suppress the drug evidence, claiming that his privacy was invaded based on the precedent set forth in United States v. Maynard. However, both the original court presiding over the case and the United States Court of Appeals denied the motion. The Court of Appeals stated that Maynard specifically did not apply to a single trip. According to the court, “the chances that the whole of Cuevas-Perez’s movements for a month would actually be observed is effectively nil—but that is not necessarily true of movements for a much shorter period.” United States v Cuevas-Perez helped to set a restriction on the applications of the United States v Maynard decision.
Overview
In April of 2011, the Obama Administration presented a petition to the Supreme Court to overturn a lower court’s reversal of the Antoine Jones’ conviction in United States v Johnson. The petition argues that the reversal conflicts with the precedents set forth in Knotts and other cases. The petition argues that “a person has no reasonable expectation of privacy in his movements (.pdf) from one place to another” The high court has not yet indicated if and when it will grant the government’s petition.
Implications
According to Wired reporter David Kravets, if this petition is granted, it could become the “biggest Fourth Amendment case in a decade – one weighing the collision of privacy, technology and the Constitution.” The high court’s decision to either grant or reject the petition and the result of the reexamination of the case should they decide to rehear it could dictate how the United States government uses technology in future investigations; it could determine how further technological advances interact with federal privacy protections.
In February of 2010, the Obama Administration argued for the right “to gain access to cellular provider records documenting the time and location American citizens place cell phone calls” without first obtaining a warrant. The Administration claimed that because individuals have “no reasonable expectation of privacy” in public spaces, government officials should not require a warrant to retrieve mobile phone location records from cell phone service providers. This notion, understandably, alarmed civil rights groups such as the Electronic Frontier Foundation and the American Civil Liberties Union. Although a federal appeals court rejected the assertion, the prospect of warrantless access to cell phone records is cause for unease.
The Future of Government Tracking
Although many would assert that the United States could not possibly ever arrive at the “Big Brother” state illustrated in George Orwell’s 1984, many others would argue that we’re already well on our way. In August 2010, a senior judge stated that there is “something creepy and un-American” about someone crawling under a vehicle “and attach[ing] a device that will track the vehicle’s every movement and transmit that information to total strangers.”
We have already seen how vehicle tracking may lead to cell phone tracking, and with it, monitoring of all mobile phone records. What will keep all personal information – what we say, do, write, and so on – from transferring to the public sphere? The trend toward warrantless location tracking warns that there may come a day when our Fourth Amendment protections nearly disappear altogether.
For sources, see our References page.
