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Police and high-tech monitoring

Like many Americans, police forces are quick to adopt new electronic devices, capable of processing a wide range of information despite the small size of many such instruments — some as small as a pack of gum.  The Supreme Court is more cautious in the face of advances in technology, preferring to move slowly in settling the new constitutional issues stirred up.  Next to test its approach, it appears, will be police use of GPS tracking.  One appeal on the issue is already at the Court; another, from the federal government, may not be far behind.

GPS — or Global Positioning System — is a way of using orbiting satellites to locate, with accuracy to 100 feet or less, an object or a place.  In a car, a GPS device can tell directions, and guide a motorist to the next interchange, or the next fast-food restaurant.  It works by recording precise geographic locations, one after the other.  The device’s memory can show an entire trip.   Obviously, then, it is a good device for monitoring someone’s movements.  And that is how police departments are now using it — an alternative to hidden cameras or visual surveillance.

What the Court is now being asked to decide is, first, whether a GPS track is a “search,” under the Constitution’s Fourth Amendment, and when might the continuous monitoring of a track become an invalid search if police do it without having a search warrant.  The Supreme Court left that second question open when, in U.S. v. Knotts in 1983, it ruled that police use of an electronic beeper to track a suspect’s trip to a drug lab was not a search. What seems to be newly at issue is the role that the duration of tracking plays in the constitutional equation; the argument is that, the longer the tracking, the more movements are monitored, the greater the potential for invading privacy.

The issue may lead the Court into a discussion of just when a car or truck moving about in public places becomes not an object of public viewing but a conveyor of private information.  The Court has often allowed more police activity toward moving vehicles than stationary, private places; the “automobile exception” to the Fourth Amendment’s warrant requirement goes back to Carroll v. U.S., a 1925 decision.

Earlier this month, lawyers for an Oregon man, Juan Pineda-Moreno, filed the first GPS tracking case at the Court (Pineda-Moreno v. U.S., docket 10-7515).  The petition is here.   The Ninth Circuit Court ruled that such a track was not a search; its decision is here.  A Circuit Court order denying en banc review, together with a vigorous dissent, is here.  There is a better-than-even chance that the Court will hear the case — or perhaps the next case to come along — because there is widespread disagreement among the lower federal and state courts on the issue.

The next case that seems likely to follow Pineda-Moreno to the Court could be one by the federal government.  It lost a case involving a District of Columbia drug dealer in the D.C. Circuit Court, conflicting directly with the Ninth Circuit.  The D.C. ruling (in a case then titled Maynard v. U.S.) can be found here.  Just last Friday, the D.C. Circuit Court denied the Justice Department’s plea for en banc review by a 5-4 vote on the GPS issue (the denial order and separate opinions accompanying it are here).

The government may tip its hand on its next step when it responds to the Pineda-Moreno petition; that response, unless the time is extended, is now due on Dec. 17.  Among the government’s other options would be to agree that the Court should hear the Oregon case, or urge the Justices to hold it while the government pursues its own appeal in the Maynard case (Lawrence Maynard’s companion case did not raise the GPS issue; that was an issue for Antoine Jones in a consolidated case.  The government sought rehearing only as to Jones and the GPS question.)

The Oregon case began in the early summer of 2007, when federal narcotics agents went into the driveway of Juan Pineda-Moreno’s mobile home, and put a GPS tracking device under the bumper of his Jeep Grand Cherokee.  Between June and September, they made seven trips to the Cherokee, sometimes in the driveway, sometimes at the curb, once at his workplace, installing GPS devices, some as small as a pack of chewing gum, or replacing the batteries.  Pineda-Moreno was completely unaware.

Ultimately, the four months of GPS tracking turned up an array of information about Pineda-Moreno’s movements — where he went, how long he stayed, the stops he made. Most critically, they tracked the vehicle to remote forest areas in southern Oregon and northern California, leading to the discovery of large plots of cultivated marijuana.

Pineda-Moreno pleaded guilty to one count of growing marijuana — more than 1,000 plants — and one count of a conspiracy to do so.  His guilty plea was on condition that he could appeal to challenge the evidence gathered with the GPS tracking.  He was sentenced to four years and three months in prison.  The Ninth Circuit, agreeing with the trial court, found the GPS monitoring was not a search under the Fourth Amendment.

In seeking Supreme Court review, his lawyers raised two questions: first, whether the prolonged monitoring via the GPS devices was a search (the issue on which the Ninth Circuit and D.C. Circuit explicitly disagree), and, second, whether the secret planting of the device on the Jeep while on private property (the “curtilage” of his mobile home) was an invalid search.

The petition, like the panel on the D.C. Circuit in the case there, relied significantly upon a passing comment that the Supreme Court made as it decided the Knotts case 27 years ago.  If surveillance round-the-clock of “any citizen of this country” should occur “without judicial knowledge or supervision,” the Court said, “there will be time enough then to determine” whether that was unconstitutional.  That, according to Pineda-Moreno’s counsel, is his case.

The case, the petition asserted, “addresses precisely the type of ‘dragnet’ monitoring of personal information that this Court expressly noted…would warrant further review.”   There is growing conflict and inconsistency among both federal and state courts on the Fourth Amendment and GPS tracking, the filing argued.

Among other points discussing the Knotts precedent, the petition suggested that the GPS device gave police considerably more opportunity to track private movements than the beeper involved in that case.  A beeper operates on a radio frequency, so police have to be within range of it to pick up the signal, the petition noted, while GPS devices “record all information as to the subject’s whereabouts and do not require police tracking.”

The D.C. Circuit relied upon that difference, as well as on the prolonged nature of GPS monitoring, in declaring that the Antoine Jones case was not controlled by what the Supreme Court had held in the Knotts decision.  Other courts have felt directly bound in GPS cases by Knotts, and the Justice Department made that point when it asked the D.C. Circuit to rehear en banc the Jones case.

Federal prosecutors’ rehearing petition in the Jones case could be read as telegraphing what a government appeal to the Supreme Court in that case would argue.  The D.C. Circuit panel’s decision on GPS tracking, that document argued, “calls into question the use many common and accepted forms of surveillance of public places, such as visual surveillance and fixed cameras….If the panel’s opinion remains in force, well-accepted investigative techniques such as physical and photographic surveillance of persons, places, and objects exposed to public view could be called into question if the use of those techniques were sufficiently ‘sustained’ or ‘prolonged.’ ”

The attorneys for Antoine Jones opposed further review in the D.C. Circuit, suggesting that the government was raising a “sky is falling” claim, and arguing that the panel had simply required agents “to get a warrant before engaging in prolonged use of GPS in a criminal investigation.”

The debate over the scope and impact of that ruling was taken up anew by dueling opinions among the judges when en banc review was denied (see the link, above).

Recommended Citation: Lyle Denniston, Police and high-tech monitoring, SCOTUSblog (Nov. 22, 2010, 6:32 PM),