Supreme Court got another one wrong
Full disclosure: I’m a former cop and retired special agent so I do have some bias in this case and I understand any disagreements.
The Supreme Court unanimously decided that installing a GPS tracking device on a suspect’s car constitutes a search and therefore requires a search warrant, and I disagree and believe the Court used twisted and tortured logic to arrive at their conclusion.
As a rule I like it when courts reign in government in general and law enforcement in particular but I don’t like it when the courts use tortured logic, redefine words, make things up or rephrase our Constitution.
Here is some background from Theblaze.com:
Supreme Court Rules GPS Tracking Requires a Warrant
WASHINGTON (The Blaze/AP) — In a unanimous and precedent-setting ruling, the Supreme Court said Monday that police must get a search warrant before using GPS technology to track criminal suspects.
The GPS device helped authorities link Washington, D.C., nightclub owner Antoine Jones to a suburban house used to stash money and drugs. He was sentenced to life in prison before the appeals court overturned the conviction.
Associate Justice Antonin Scalia said that the government’s installation of a GPS device, and its use to monitor the vehicle’s movements, constitutes a search, meaning that a warrant is required.
“By attaching the device to the Jeep” that Jones was using, “officers encroached on a protected area,” Scalia wrote.
The bottom line is that attaching a GPS device to your car in order to facilitate following you is not a search as the Court has now said it is, and I believe they have redefined the word “search.” But, here are some of my other problems with this ruling taking libertarian concerns for privacy into consideration:
A GPS device in this case simply acts as an extension of a police officer’s natural abilities to see and follow you and his department’s normal ability to dedicate costly resources to follow you such as multiple officers over an extended period of time. The GPS device does nothing that can’t be done another way.
And, a person has no reasonable expectation to privacy – the standard for search warrants – while moving about in public. You are seen and watched by normal citizens in your daily travels as well as government’s watchful eye in the form of traffic cameras, etc.
You have a reasonable expectation to privacy within your vehicle but not for where that vehicle is going and how.
Albeit more difficult, several police officers can work in shifts to conduct a physical surveillance of you day and night for weeks on end without a warrant, and a GPS device simply removes the need for those costly resources and aids in officer safety during a “rolling” or moving surveillance.
Police can watch you through scopes and binoculars and even use parabolic microphones in order to listen to you at long distances without a warrant because all of those things are simple extensions of their natural senses and abilities. They can run undercover officers against you and you might even invite them right into your house without a warrant while they are legally lying to you about who they are and what they’re doing.
Now, if the GPS device was placed inside a locked car or the trunk of the car as opposed to being attached under the outside of the car then that still is not a “search” in the traditional definition but it is more intrusive. There are GPS devices that attach under the vehicle and can be hidden quite effectively.
Here are more excerpts from the article at Theblaze.com:
All nine justices agreed that the placement of the GPS on the Jeep violated the Fourth Amendment’s protection against unreasonable search and seizure.
Greg Nojeim, director of the Center for Democracy and Technology’s project on freedom, security and technology, said in an interview with The Blaze that the Supreme Court’s decision was “landmark”.
“It signals their willingness to protect privacy in the face of advancing technology,” Nojeim said.
Scalia wrote the main opinion of three in the case. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.
Wired has more from Scalia:“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” Scalia wrote.
In a footnote, Scalia added that, “Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”
Nojeim also said that majority opinion of the Supreme Court placed an emphasis on that it was the pervasiveness of the tracking that stimulated the need for a warrant — not only the trespassing. Using this sentiment, he thinks that this could open the door for the potential of requiring a warrant on tracking cellphones as well, although this was not discussed by the high court.
First of all, what was searched? You tell me, what was searched? In actuality it wasn’t even a person that was tracked but a vehicle and anyone who may have been driving it at the time, but nothing was searched. I applaud Justice Scalia for accurately stating the Court’s role in this matter but disagree with his conclusion for the reasons I stated.
Notice what Mr. Nojeim said, “…that majority opinion of the Supreme Court placed an emphasis on that it was the pervasiveness of the tracking that stimulated the need for a warrant — not only the trespassing.”
Well, I’m sorry but pervasiveness does not equal a search. And I admit I don’t know all of the specific details of the case but do we know law enforcement trespassed? Or, did they place the device on the car while it was parked in a public area? That’s what I would have done and did during my career.
Before you call me a big government neo-con or fascist, I oppose red light cameras, body scanners and believe in a strong and vibrant 4th Amendment. I believe that it was courts and defense attorneys that made me a better cop and special agent during my law enforcement career – they made me do my job better. But, I oppose an activist Court that changes the Constitution and the meaning of words and phrases even when dealing with new technologies and tactics.
I believe the Court got this one wrong even if their decision was unanimous.
January 26th, 2012 at 6:13 am
[...] To illustrate, we will counter some objections people have had to the ruling. The first is, as a friend and fellow blogger wrote, “what was searched?” [...]