The Supreme Court, Monday, denied the government’s petition to reinstate the drug conviction of Antoine Jones after it was reversed by the DC Circuit. Jones was convicted after government agents attached a GPS monitor to the underside of the automobile that he drove for four weeks obtaining 2000 pages of data showing every place he went.

While the decision was unanimous the court was divided as to the reason to deny the government’s petition. Five justices ¹ signed onto Justice Scalia’s majority opinion holding that the placement of the monitor violated Jones’ right under common law trespass laws. Four justices ² joined Justice Alito’s decision holding that the government action violated Jones’ reasonable expectation of privacy.

In recent years most Fourth Amendment decisions have been based on the concurring opinion by Justice Harlan in Katz v. United States in which he stated that the Fourth Amendment protects a person’s “reasonable expectations of privacy.” But according to Scalia Katz’s privacy analysis did not replace the preceding interpretation of the Fourth Amendment that held that it protected the property rights of individuals. Katz merely supplemented the long standing property rights interpretation. Since the government committed a trespass to place the monitor on the car and therefore violated Jones’ property rights it violated the Fourth Amendment.

While the long awaited opinions did not break new ground, they pointed to the need to adopt Fourth Amendment law to the protect privacy rights from invasion by governmental electronic devices. Among the questions left for future cases is what would the result have been if the government used electronic devices to follow Jones for four weeks without having committed a trespass? It may have still violated his Fourth Amendment rights by violating his expectation of privacy.

As I pointed out in a prior post the 1983 Supreme Court decision in United States v. Knotts. appeared to stand in the way of resolving electronic search questions. In Knotts government agents placed a beeper into a five gallon container of chemicals at a retail chemical facility. The store then sold the chemicals used in manufacturing methamphetamine to Armstrong, a co-conspirator of Knotts and followed the vehicle with the beeper to Knott’s residence. In that case the Supreme Court found that the government had not performed a search or seizure and therefore there was no Fourth Amendment violation. Scalia avoided dealing with Knox by pointing out that since the beeper was placed in the container before it belonged to Armstrong there was no trespass on his property. In fact it was placed in the container with the support of the company selling the chemicals and therefore there was not a trespass.

The Supreme Court, Tuesday, heard the case of Antoine Jones, the Washington D. C. nightclub owner who was sentenced to life in prison for cocaine related charges after police placed a GPS device on his vehicle, without a search warrant and tracked him for a month.

There is something basically wrong with the government being able to track citizens wherever they go and whatever they do. As Justice Breyer said, it “sounds like ‘1984.’ ” Breyer and Sotomeyer pointed out that if the government is right, they can put a tracking device on every car in country and track everyone.

While the majority of the court seemed to agree that the United State government violated the Fourth Amendment, the problem is U.S. v. Knotts. In Knotts, a 1983 case, the Supreme Court ruled that the Fourth Amendment was not violated when the police used a beeper to track a vehicle carrying chemicals from the retailer to the residence where a methamphetamine lab was located.

As a general rule the Supreme Court is reluctant to reverse prior decisions. It prefers to differentiate the prior decision by a difference in the facts between the two cases. But that will be difficult here. The difference between a beeper and the more modern GPS is probably immaterial. It has been suggested that the court will find that it was okay to track the vehicle in Knotts since that was for only one day while it is not okay in Jones because it was for a month. But where do you draw the line. Is two days okay? Is 29 days not okay? Is 15 days permissible but not 16 days? It may just be time to admit they made a mistake and reverse the finding in Knotts.

The Department of Justice is urging the Supreme Court to take up the Fourth Amendment issue of Global Positioning Systems (GPS). Various courts have ruled on the constitutionality of the use of GPS without getting a warrant and rulings have come down on both sides of the issue,

The Ninth and the Seventh Circuits have ruled it constitutional while the D. C. Circuit found it unconstitutional. Courts in New York, Massachusetts, Washington and Delaware have found it unconstitutional while courts in Ohio and Virginia have approved of the practice.

The Justice Department is challenging a D. C. Circuit opinion that overturned the conviction of Antoine Jones on cocaine trafficking charges after GPS evidence played a mayor role in his conviction. The DOJ argues that since law enforcement officers could have followed Jones as he traveled on the public roads he could not have had a legitimate expectation of privacy. The Fourth Amendment only applies to individuals who have an expectation of privacy that is recognized by society.

However his attorneys argue that using a GPS device on Jones’ Jeep Cherokee for over a month and reporting his whereabouts every seven seconds was a tremendous invasion of his privacy and is prohibited by the Fourth Amendment.

The Courts that have upheld warrantless GPS searches have cited the 1983 Supreme Court decision, United States v. Knotts in which the Supreme Court upheld the conviction of a man in a methamphetamine case after the wholesaler of necessary chemicals placed a beeper in a barrel of chemicals. The barrel was placed in a codefendant’s vehicle and followed by agents to the suspect’s residence.

Knotts has been cited by the courts in upholding warrantless GPS decisions. Most of the Courts have said that if it was constitutional to follow a car with a beeper, it is constitutional to keep track of a vehicle with a GPS deviced placed under the car’s carriage while it is either parked on the street or in the defendant’s driveway.

But while the lower courts do not have the power to reconsider Knotts the Supreme Court does. It is a decision that may have had some validity 30 years ago but with the technological advances in the last 30 years allowing greater and greater invasions into citizen’s privacy it is time for the Supreme Court to reconsider the decision.

An automobile mechanic discovered a GPS device attached to Yasir Afifi’s vehicle when Afifi took the car in for an oil change. Why the FBI attached the device to Afifi’s car we do not know. Afifi lives in California where the Ninth Circuit has ruled that a search warrant is not necessary to place a GPS device on a vehicle. If he lived in the District of Columbia the result would be different because the DC Circuit has ruled that a warrant is necessary ¹ and the FBI would have had to file an affidavit showing probable cause with the court in order to obtain a warrant to place a GPS device under the vehicle.

What we do know is that Afifi is an Arab-American, that his father was active in community affairs and that Afifi maintains contact with friends and family in Egypt. None of these are good reasons and they would not support a search warrant. But as long as the Ninth Circuit finding that GPS attached to a vehicle on public roads does not violate an individual’s reasonable expectations of privacy remains in effect, Afifi’s has limited legal recourse.

This is just one more reason that we need the Supreme Court to review the issue.The Supreme Court in United States v. Knotts ruled that it did not violate the Fourth Amendment to place a beeper in a barrel of chloroform on the back of a truck as a means to aid agents keep track of a vehicle during a short trip. The Ninth Circuit and the Virginia courts have ruled that this justifies the use of GPS to keep track the the whereabouts of a vehicle on a public road. But the technology has changed considerably since the 1983 Knotts decision and as I have suggested before now it is time for the Supreme Court to review the situation, particularly in light of the mixed decisions of lower courts and state courts.

The Court of Appeals of Virginia has joined a number of other courts in finding that attaching a GPS device to a car while it is parked on public property and maintaining contact with the car while a suspect is driving it is not a violation of the Fourth Amendment.

David L. Foltz is a convicted sex offender. He was employed and used a company truck in the course of his employment. He had permission to use the truck to drive to and from work and to stop to go to treatment meetings on his way home. The police knew that there was a series of sexual assaults in the area around his work and his meetings. They further knew that the modus operandi was similar to that used by Foltz in the past.

They attached a GPS unit under the bumper while the car was parked on the street near Foltz’s residence. The unit had the power to keep track of his travel and and to allow the police to track the vehicle in real time.

Five days later a sexual assault occurred. The police checked the GPS log and discovered that the truck was in the area of the crime. The following day they followed the van without using the GPS. They saw Foltz attempt to assault a woman and arrested him.

He was charged with abduction with intent to defile. He moved to suppress the evidence on Fourth Amendment grounds. The motion was denied. He went to trial and was sentenced to life in prison. On appeal the court upheld the denial of the suppression motion. The United State Supreme Court in United States v. Karo held in 1984 that it was not a violation of the Fourth Amendment for a supplier to put a beeper in an ether container and for the police to follow the vehicle by using the beeper.

The Virgina court and several other courts have found Karo to be precedent. They ruled that if it was not a violation of the Fourth Amendment to place a beeper in an ether container and follow the vehicle using the beeper, it is not a violation to attach a beeper to the bumper and electronically follow the vehicle. In both cases electronic devices are being use to accomplish a task that could be done with human eyes. If Foltz drove the truck where he could have been followed by the police in an unmarked vehicle then tracking the vehicle with an electronic device is not a violation of Foltz’s Fourth Amendment privacy rights.

The test for a Fourth Amendment violation is whether the government violates a subjective expectation of privacy that society recognizes as reasonable. While Foltz parked his car on the street, I suspect that if he knew that a GPS device was being attached to the vehicle he would have believed that his privacy was being violated. In fact, if I looked out my window and saw someone putting something under my bumper I would not only think that my privacy was being violated but I may think that it was a bomb and call the police. Certainly, if Foltz parked his car in his garage and officers entered the garage to place the GPS device on the vehicle we would all agree that Foltz had a legitimate expectation of privacy and that the government violated it. But because Foltz is not wealthy enough to have a garage the court finds that he does not have a legimate expectation of privacy. A Fourth Amendment right should not be based upon the wealth or poverty of the defendant.

But what I don’t understand is in many states, including Virginia, a defendant can be required to surrender his/her Fourth Amendment rights in order to be put on probation. If Foltz had been required to surrender his Fourth Amendment rights when he was put on probation prior to his current arrest he would not have been able to move to suppress the evidence and the GPS issue would not have been raised. In many states new laws mandate that sex offenders must wear a electronic monitor at all times allowing the authorities to keep track of them. Apparently this was not the law in Virginia at the time of Foltz’s arrest but it is certainly becoming more common. We will no doubt be seeing cases challenging these laws on Fourth Amendment grounds in the future.

The District of Columbia Circuit Court of Appeals reversed Antoine Jones’ conviction for distribution of cocaine and cocaine base due to Global Positioning System (GPS) tracking of Jones’ vehicle without a search warrant.

Jones’ conviction was based, in part, on the use of a GPS tracking device which was attached to his vehicle for four weeks. The Court found that the failure to have a valid search warrant ¹for the use of the GPS device, violated Jones’ legitimate expectation of privacy, and therefore the Fourth Amendment.

In order to find that GPS devices require a search warrant the Court had to distinguish the use of GPS devices from the use of beepers in the Supreme Court’s decision in United States v. Knotts. In Knotts the Supreme Court ruled that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” In Knotts a manufacturer of chemicals used in the manufacture of methamphetamine alerted the police of suspicious sales. The manufacturer then at the urging of the police planted a beeper in a five-gallon container of chemicals purchased by Tristan Armstrong. The police monitored the progress of the car carrying the beeper, to Knott’s Wisconsin cabin. The Supreme Court found that since Armstrong’s vehicle could have been followed on the public streets by a police car the use of a beeper to assist the police did not violate the driver’s legitimate expectation of privacy.

The Circuit Court distinguished the use of GPS on Jones vehicle from the use of the beeper on Armstrong’s vehicle by the fact that the use of the GPS lasted around the clock for four weeks while the beeper was only monitored during a short ride from Minneapolis to the cabin in Wisconsin. But just as the police could have followed Armstrong’s vehicle on the public streets they could have followed Jone’s vehicle. The Circuit Court pointed out that it would be much more difficult to follow a vehicle for four weeks and that during a prolonged period one learns significant private details about a person’s life that one does not learn during a short trip. Also the Supreme Court in Knotts specifically did not decide what would happen in technological advances allow long term trailing of a vehicle.

However, I find it difficult to accept the supposition that a short term trailing of a vehicle is not a violation of a legitimate expectation of privacy and a longer term trailing is a violation. With the increased use of GPS the issue may well appear before the Supreme Court. The Circuits have split. The Ninth and Seventh Circuits, relying on Knotts, have found the use of GPS to not be a search. The Supreme Court has several options. It can find Knotts to be decisive or at least persuasive and therefore find that the use of GPS is not a “search” and therefore a search warrant is not necessary. It can accept the D. C. Circuit’s distinction based upon the length of the search or it can reverse Knotts.

A unique option would be to find the search illegal under state law and rule that illegally obtained evidence should be excluded. The placing of the GPS device on the vehicle was clearly a trespass and trailing the vehicle for four weeks is stalking. But the Supreme Court has never excluded evidence based upon a violation of state law.

New York joined Oregon and Washington in finding that their state constitutional bans on illegal search and seizure prevents the warrantless use of GPS, by law enforcement to track a vehicle.

State Police investigators placed a GPS device under the bumper of Scott Weaver’s van and left it there for 65 days, creeping under the van once to change the battery. Evidence taken from the GPS device was used to convict Weaver of the burglary of a K-Mart.

The New York Court of Appeals found that having a GPS device secretly placed under your vehicle for 65 days was so invasive as to violate the state constitution’s requirement that a search warrant is necessary for the search of the vehicle’s route. The court recognized that while the United States Supreme Court has never considered the validity of a GPS search it had found legal the use of a beeper in United States v. Knotts placed in a barrel of chloroform on the back of a truck as a means to aid agents keep track of the vehicle.

But the court found that the beeper in Knotts was a lot less sophisticated than GPS. The Supreme Court in Knotts found that the beeper was permissible since it was only an aid to human vision. Current devices are a lot more accurate than the beeper and human participation in tracking vehicles is no longer needed. The invasiveness of current devices is way beyond what the Supreme Court could have dreamed of twenty-six years ago in Knotts. As the court stated:

Disclosed in the data retrieved from the
transmitting unit, nearly instantaneously with the press of a
button on the highly portable receiving unit, will be trips the
indisputably private nature of which takes little imagination to
conjure: trips to the psychiatrist, the plastic surgeon, the
abortion clinic, the AIDS treatment center, the strip club, the
criminal defense attorney, the by-the-hour motel, the union
meeting, the mosque, synagogue or church, the gay bar and on and
on.

The court noted that there may be cases where exigent circumstances do not permit the luxury of getting a search warrant but in this case where the GPS device was on the vehicle for 65 days that is hardly the case.

The court also recognized that the expectation of privacy in a vehicle which is open to the public is a lot less than in a residence but it pointed out many circumstances, most recently in Gant, where the Supreme Court found an expectation of privacy in a vehicle.

Unlike the Oregon and Washington constitutions the New York search and seizure clause tracks the Fourth Amendment. Therefore there is some hope that someday when the United States Supreme Court decides a GPS case that it will follow the New York example.