The Supreme Court has taken away law enforcement's routine use of GPS devices to keep track of criminal suspects. You can legally buy and use trackers, but cops need a warrant. Fair?
Back in the Wild West days, law enforcement officers like Wyatt Earp and Bat Masterson had few tools to keep the peace. Guile and a gun on their hip were about all they possessed in the face of trouble. Today's officers have many more ways of tracking down and capturing the bad guys. That makes their job much easier than in days of old, but also more complicated. A recent ruling by the U.S. Supreme Court may have just made modern-day law enforcement more complex. Bear with me a moment here, and I'll explain why.
First, you should know that the Supreme Court decision I speak of stems from the case of Antoine Jones, a nightclub owner in Washington, D.C., who was suspected of being part of a massive cocaine-selling ring. In an effort to gather information about Jones, police slapped a GPS tracking device on his Jeep. An ingenious move in this technologically advanced day and age, you might think. Indeed, the information about Jones' travel was used to convict him in what police called the largest cocaine seizure in the District's history. Jones was sentenced to life in prison in January 2008.
But the highest court in our land has now ruled that installing that GPS tracker was an unconstitutional action, a violation of every citizen's Fourth Amendment protection against illegal searches and seizures, because no judge signed a warrant ahead of time. Justice Antonin Scalia wrote that "[monitoring] the vehicle's movements constitutes a 'search,'" much like police entering your home without a warrant to see what they can find.
In addition, the unanimous decision found fault with the D.C. police for leaving the GPS device in place for a full month, monitoring Jones' trips to church, a gym, a local bar, and the headquarters of a known bookie. While I'm guessing D.C. police (and the FBI, which was part of the operation) had firm evidence that pointed to Jones' involvement in the drug operation, you have to admit it is kind of creepy to think law enforcement can secretly follow a citizen around for days on end without first convincing a judge they've got probable cause to do so.
(May I just interject here that countless U.S. citizens are currently using legally purchased, palm-sized GPS tracking devices every day to keep watch over their new teenage drivers, elderly parents, and spouses. Citizens can routinely use them, but police cannot? That doesn't make a lot of sense to me. But I digress...)
An appeals court had already overturned Antoine Jones' drug conviction, and the U.S. Supreme Court has now let that decision stand. It's assumed but not confirmed that prosecutors will try Jones again on drug charges.
But here's why this decision may wreak havoc in cop-shops across the land. There are nine justices of the U.S. Supreme Court, and in writing their thoughts on the Jones case, I think they may have opened the door to countless challenges to technologically based police investigative techniques.
Five of the justices wrote that they are uncomfortable with the government using all sorts of modern technologies. Specifically mentioned was the data officers can gather from cell phone towers or those automatic toll booths to help prove where a suspect was at any given time.
While the Jones case focused on the narrow issue of his Jeep and a GPS system, Justice Samuel Alito wrote about other "new devices that permit the monitoring of a person's movements" that just don't square with what we traditionally think of as our Fourth Amendment rights to privacy. Alito worried about the government tapping into "closed-circuit television video monitoring [that] is becoming ubiquitous," toll-collection systems that help police put a suspect at a certain place at a certain time, and even the apparatus on many new cars that allows roadside assistance companies to pinpoint a driver's exact location or to find the car if it is stolen.
Justice Sonia Sotomayor correctly pointed out that "[p]hysical intrusion is now unnecessary to many forms of surveillance." All a police officer has to do these days is learn to tap into technology that is already in place, like cameras that record the action at banks, intersections, office hallways, and many public spaces. "People disclose the phone numbers that they dial or text to their cellular providers; the URL's that they visit (on the computer) and the e-mail addresses with which they correspond to their Internet service providers," Sotomayor wrote. And so if a person gives up that information to a third party, isn't it fair game for the cops? Nearly every police investigator I know would say yes.
But now that justices of the United States Supreme Court have raised questions about police using these technological tactics, can it be long before defense attorneys figure out ways to cast doubt on entire investigations? I can just hear it now: "Your honor, my client's right to privacy was violated when police learned from a search of his computer that he was buying Oxycontin online! They had no reason to know he was selling it without that illegal search!" I'm betting that some of them with clients convicted on technologically based evidence have poured over this latest Supreme Court ruling and are already thinking about ways to appeal their cases. I hope judges everywhere are ready for them.
Diane Dimond may be reached through her website, dianedimond.com. Her latest book, Cirque Du Salahi, is available through Amazon.com.
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Had the cops simply read the requirements of the warrant and adhered to them, Jones would have no case; don't blame the high court for upholding a basic tenent of the law. Warrants must be specific or cops will abuse them every time. There is no use in a legal safeguard like a warrant if it can be ignored or adapted as cops wish.
Also, Ms. Dimond, people who choose to use substances not on the approved list of intoxicants because of prohibition idiocy are not " bad guys" and demonizing millions of people is not only silly but devastating to society and the principles we cherish as Americans, like freedom of choice in matters of one's own self.
Too bad the author did not research better and exxplain the issues correctly; if we allow full blown techno snooping without limits, the police will gladly have us living like those under fascist regimes ...the police can never be trusted with our rights, and the court was right to toss this abuse of the warrant process.
Or, I could be an old cop clinging to the past...
First, thanks for all your years of service! But, what is a cop/detective on-the-job today supposed to do when they are strictly prohibited from getting overtime and constantly pounded by the bosses to make arrests and quickly close cases? Using a GPS device as an extra set of eyeballs on a suspect solves both issues. It lets the officer go home without racking up overtime and it often helps solve cases as a look at the GPS log the next day can tell a cop in an instant where the suspect has been. I used to be wedded to my old Underwood typewriter and hated the sight of the new fangled computer my boss wanted me to use. Now, I realize the computer changed my life....for the better. (Well...mostly for the better!) ~ DD
First of all, please, my name is Jeff. It was my sincere privilege to serve people like you.
It has been my experience that a good bit of the value of surviellance is not only knowing where the person has been, but also in knowing what he was doing there, and a GPS unit cannot tell us that. That type of overtime is neccesary, and I think that any police administrator recognizes that. I appreciate your analogy regarding your typewriter, but it did not get out and do the legwork required for you to be able to use it, regardless of which machine you where using. You had to do that yourself. Regards, Jeff.
For openers, ANY unanimous Rights of the Accused decision of the Court sends a strong message to all cops that they better tread lightly on our Constitutional right to privacy.
It would be easy to see how this Roberts/Alito/Scalia Court could have gone the other way with a split decision. Then Ms. Dimond and the rest of us would have to always look in our rear view mirrors to see the long arm of the law creeping into our front seat.
We have total confidence in New York and other Judges in correctly interpreting our Constitutional Right to be free of unreasonable search and seizures.
Thank you Diane for this thought provoking, albeit conservative piece.
"Conservative" piece? Interesting choice of words to describe my column - which, by the way, I wrote simply as a warning for the future. If SCOTUS justices are writing cautions about law enforcement's use of toll booth and cell phone information I think its safe to say defense attorneys will use those very SCOTUS words in future appeals. That's not a "conservative" warning - just a common sense one. ~ DD
That having been said the issue of search and seizure is an ever-changing one as times and technology changes. If someone is arrested for a DUI and they are being processed for 2 hours, should the police be able to search their laptop computer in their briefcase? Or should the police be able to search their smartphone which may have Microsoft Office attached to their computer at home and essentially remotely search their home computer? So far the law says "No"
I hope you'll read and think more carefully in the future. It's really a bad thing when a columnist makes such a huge mistake and misleads everyone who reads their column.
Oh, by the way, we citizens cannot place GPS trackers on police cars, so your allegation that we can use GPS trackers where the police can't is somewhat muddled. (deliberately conflating author's statements here) Yes we can use GPS trackers on our own cars. And guess what? The police can use GPS trackers on their own cars too! So right now, as always, both the police and citizens can put GPS trackers on their own vehicles without requiring permission from the Supreme Court, or a local judge. The police are only required to get a warrant when they wish to place a GPS tracker on a privately owned vehicle. There's nothing wrong with that, in fact it's a good thing. Keeping our constitutional principles intact helps keep our country the best in the world.
No where in the column did I say The Supreme Court decision "prevents the police from using GPS tracking devices." I'd be pleased if you go back and read it again for clarification. ~ DD
Besides, there is no expectation of privacy when you are outside on the streets driving. There are not entering the vehicle. Nos putting a microphone nside the car is another issue. Simply because no one expects that the converations that take place inside your car can be heard by other people.
Honestly, I can see it from both perspectives.