Wednesday, June 29, 2011

Tracking GPS: It's Not a 4th Amendment Search

The Supreme Court has granted cert in US v. Jones, in which the D.C. Circuit Court reversed Appellant Jones's conviction on drug distribution charges. The evidence used to convict Jones by installing a GPS tracking device on the suspect's car. The police did not seek a warrant prior to installing or monitoring the GPS device, which the Circuit Court declared a search. Because that search was not supported by a Fourth Amendment warrant, the evidence was tainted, and the conviction vacated.

I'm pretty excited whenever a legal case comes up that includes a police tactic dramatized in The Wire, but that's not why I'm interested in this one. This is a rare Fourth Amendment case when I think it should be a fairly easy case and the government should win.

Now, Eugene Volokh sees the issue differently, and when Volokh isn't talking about economics or public policy in general, I tend to think he's a pretty sharp commentator. I think we should take his initial reaction seriously:
But the installing of the device may give a Justice Scalia or Thomas second thoughts; the act of installing the device is the act of interfering with someone’s private property, and it likely would be a taking under Fifth Amendment principles. Given the historical connection between the Fourth Amendment and trespass law, it’s conceivable that an originalist Justice might conclude that the interference with a person’s private property without a warrant triggered by installing the device violates the Fourth Amendment even if the subsequent use does not.
I admittedly am not terribly strong on recent Takings doctrine, but the general background here is that the field of Fifth Amendment protection of personal property has been aimed squarely at environmental law. The typical Takings case involves a legislative effort to dictate the actions of private land holders, who find relief through the court by showing that the legislation has degraded their economic prospects. A development company can no longer build an assisted-living community in a swamp--now a 'wetland;' a lumber company cannot cut down trees on their own property in which endangered species roost; etc... If the Fifth Amendment has anything to say about installing a device on the undercarriage of a car or in the hollow of its bumper, it would have to take value away from the car. The only limitation that the GPS tracker removes from the vehicle is that it becomes less valuable for the commission of crimes. Perhaps if the GPS trackers were a preexisting network that the police could tap into at will, then there would be serious 4th Amendment concerns. That access would require a warrant. Because the police have to specifically pick a target and have hands-on access to the vehicle, it makes the technology less dangerous to general abuse.

The larger problem with using the Takings clause as a deterrent on police powers is that police already have to contend with an extraordinarily similar clause: the prohibition on government seizure without probable cause. The Fourth Amendment specifically applies to 'takings' in a criminal context; I can see now reason why it would be good policy to look to the Fifth Amendment's Takings clause for rights of suspects. Volokh demonstrates unadulterated wishful thinking here that suddenly Alito, Thomas, and Scalia would decide to become libertarians for a day.

He's also hoping that the conservative wing of the court adopts a 'privacy penumbra' approach to the Bill of Rights, the approach set forth in Griswold v. Connecticut, which forms the basis of the right to reproductive privacy and control over medical decisions. The theory goes that certain sections of the Bill of Rights projects an unenumerated general right to privacy from government intrusion; the framers designed the Bill of Rights to stop the most dangerous specific encroachments that they witnessed in the previous couple decades, protecting privacy generally for future generations. It's a theory that Scalia has worked for decades to pick apart. It would certainly be impressive if in a criminal decision, he turned his personal mission on its ear just to uphold the dismissal of a multi-year drug distribution sentence.

The question of whether installation of a GPS device constitutes a search is a novel one to the Supreme Court, but not to the circuit courts. In United States v. Garcia, 474 F.3d 994 the Third Circuit decided the question in the negative. That the Supreme Court wants to elevate the question to make the answer authoritative among all circuits is hardly surprising, and doesn't tell us much about the Supreme Court's intention with the question. The question is implicated in daily police practices, and resolving the issue for all circuits at once would be a great boon to federal law enforcement. If the intention is to throw out the District Court's reasoning in US v. Jones, but require a showing of probable cause before police install a GPS device, they would necessarily have to ask the question. That the question was inserted in the certiorari grant tells us nothing about the intention here.

Since Katz, a search has at a minimum entailed police intrusion on an activity that provides "reasonable expectation of privacy." Methods of capturing information about a suspect in the public sphere have been allowed. Nearly thirty years ago in United States v. Knotts 460 U.S. 286 (1983), the Supreme Court held that monitoring of a pre-GPS tracker, a beeper device, was not a search, as police tracked the movement of the suspect's car on public roads. Police unquestionably may perform visual surveillance of a suspect on a public road, and Knotts extended the tools available to police into the realm of electronic surveillance. In dicta, the court has been concerned with "dragnet" surveillance. The concern that technological advances in GPS technology remove practical limits to police ability to launch extensive surveillance of suspects without a warrant. I think the Harvard Law Review would be well served to review the difference between 'police authority' that the Fourth Amendment concerns itself with and 'police resources' and allocation thereof. If we should concern ourselves with how police expend their resources, by for example surreptitously installing GPS trackers on a wide spectrum of cars, that can be rectified through executive oversight and democratic recourse. Many of the specific harms that the law review worries over--warrantless targeting of cars belonging to ethnic minorities, drunk driving enforcement, and dragnet-style tracking to discover points of convergence which would, and this is speculative, pinpoint drug dealing sites--are already prohibited practices. Civil rights lawsuits pose a substantial deterrent to minority targeting. Dragnet-type surveillance would hardly pass muster within a police department. Imagine the outrage once the program became known (it wouldn't take long if it was a widespread program). As long as police departments are properly overseen by the civillians they serve, these harms are a non-issue.

I'm going to use a less complicated forecasting measure than Volokh did. He thinks predicts that the case will go government because--well--it's the Roberts court on a Fourth Amendment question. I'm going to use the marginally more complicated version: higher courts typically grant review when they want to change the outcome.

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