In 2011, the U.S. Supreme Court smacked down an argument by the Administration of President Barack Obama claiming police weren’t “searching” criminal suspects when they secretly planted GPS tracking devices on their vehicles and monitored their comings and goings.
The court didn’t opine on whether that kind of secret GPS surveillance can be done only after police have obtained a search warrant or whether it could proceed simply from cops’ developing of probable cause.
But by telling the Department of Justice (DOJ) that law enforcement agencies must regard GPS stalking as an equivalent to other types of traditional police searches, it did ensure that future convictions based on secret GPS surveillance would have a heck of a time surviving legal challenges until laws concerning the technology had set clear boundaries for what the cops can and can’t do with GPS — and at what stage of an investigation they can do it.
With that legal mystery yet to be solved, parties are taking sides in arguments this week before the 3rd U.S. Circuit Court of Appeals. There’s the American Civil Liberties Union (ACLU), which is appealing a portion of the SCOTUS ruling on behalf of the criminal suspects in the original case. Then there’s the Obama Administration and Attorney General Eric Holder. Can you guess which side they’re on?
The DOJ is staking out as much territory for warrantless law enforcement officer power as it can.
The Obama Administration is now arguing that using GPS data to watch the comings and goings of anyone police deem suspicious, 24 hours a day, for days on end, doesn’t infringe the 4th Amendment’s assurance that people have a right to be “secure in their persons, houses, papers and effects, against unreasonable searches and seizures.”
The collateral assurance, that “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,” also shouldn’t apply to GPS searches, the DOJ argues.
What’s the basis?
U.S. attorneys are invoking the “automobile exception” to 4th Amendment limitations on warrantless searches and seizures. A precedent rule that’s stood since the rum-running Prohibition era, the automobile exception essentially has allowed cops, provoked by evidence thought to be present in the car at the time they develop probable cause, to go ahead and conduct a search, without a warrant, before a suspect might flee their jurisdiction with contraband in tow.
The ACLU says that’s B.S.; that Obama’s legal goons pretty much know they’re comparing apples with oranges; that secretly watching someone’s every coming and going is exactly the opposite of pulling someone over because he’s believed, either in that moment or through the issuance of a search warrant, to be transporting something illegal.
To apply the automobile exception to GPS searches, as the government urges, would be to radically expand the doctrine. The exception permits stops of moving vehicles upon probable cause and searches of a car for contraband and evidence of crime, not tracking of its driver and passengers. Put otherwise: The automobile exception is about preventing contraband and evidence of crime from absconding; GPS searches are about tracking individual persons as they go about their business.
Thus, the primary justification for the automobile exception, the exigency created when physical evidence of crime might disappear, is wholly absent in the GPS context…
…The overwhelming majority of GPS searches involve no such risk of destruction or removal of evidence. Rather, they involve surreptitious attachment in the dead of night and extended remote monitoring, the very antithesis of exigency. To be sure, in cases of actual exigency, for example, where police have both probable cause to believe that a vehicle contains contraband or evidence of criminal activity and good reason to believe that the vehicle might disappear before a warrant can be obtained, no warrant will be required for the initial attachment.
In the 2011 case (the one that smacked down the Obama Administration’s argument that GPS tracking isn’t a “search” as defined by the 4th Amendment), the justices observed that government GPS stalking could “suddenly produce what sounds like 1984” and that, “If you [the U.S.] win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.”
A U.S. attorney in that case told the court there was no reason why the Feds couldn’t secretly put GPS trackers on each Supreme Court justice’s car — or on an overcoat — and watch every public move they made.