DOJ Pitches GPS Surveillance Case to Supreme Court

http://legaltimes.typepad.com/blt/2011/04/doj-pitches-gps-surveillance-case-to-supreme-court.html

http://legaltimes.typepad.com/files/doj_gps_cert.pdf

On Friday, the Solicitor General filed a certiorari petition with the Supreme Court to resolve a circuit split on whether a warrant is required for GPS surveillance. The case, United States v. Jones, involves the government’s use of GPS tracking technology to monitor a person’s movements on public roads for an extended period of time.

As part of an investigation into the defendant’s supposed narcotics distribution, the FBI placed a GPS tracking device on defendant Jones’s Jeep, tracking its movements 24 hours a day for 4 weeks. The FBI’s prolonged tracking of Jones without a warrant raised serious 4th Amendment and privacy concerns. On appeal of his conviction in the D.C. Circuit, Jones argued that the Government’s use of a GPS device constituted a violation of his reasonable expectation of privacy and was a breach of his 4th Amendment right. The Government relied on United States v. Knotts for the position that the tracking of a suspect on public roads does not constitute a search. In Knotts a beeper was placed in a container containing chemicals used in the production of methamphetamine to track the suspect’s vehicle from the purchase location to his cabin. The Court of Appeals held that Knotts did not control as it did not address the issue of a prolonged, dragnet type surveillance. The Court reasoned that while the movement of the defendant in Knotts, from one location to another, was readily exposed to the public, the totality of Jones’s movements over the course of a month was not. The aggregation of Jones’s movements for an entire month reveals intimate details that a single trip would not and therefore there was a reasonable expectation of privacy in those movements.

The D.C. Circuit’s adoption of this “mosaic theory” of privacy puts it at odds with the Seventh, Eighth, and Ninth Circuits, all of which permit warrantless GPS surveillance. The Government maintains that the D.C. Circuit’s contrary holding will hamper the ability of law enforcement to collect evidence to establish probable cause at the onset of an investigation. It also makes a slippery slope argument, fearing that wider acceptance of the “mosaic theory” will jeopardize other longstanding investigatory techniques used to collect public information on criminal suspects.

The Jones case presents the Court with the opportunity to revisit its thirty-year-old holding in Knotts and squarely address whether the aggregation of otherwise public information through sophisticated technological means changes the nature of a suspect’s privacy expectations. It remains to be seen whether the Court will, in Jones or a future case, follow the lead of a number of states that have imposed a warrant requirement in these circumstances.