By Steve Elliott of Toke of the Town
The United States Supreme Court will decide whether law enforcement should have obtained a search warrant before placing a global positioning system (GPS) tracking device on the car of a Washington, D.C., man who was suspected of dealing drugs, so they could covertly track his movements.
The justices on Tuesday heard oral arguments in an appeal from the Obama Administration, which wants the power to track suspects' movements without getting a warrant, reports Bill Mears at CNN.
A majority of the justices appeared adamant after a one-hour public session that police officers should have gotten a warrant before placing the device on the subject's vehicle, Mears reports. A government lawyer didn't help the Feds' case when he suggested that such surveillance could be used on members of the Court itself.
?"So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?" asked Chief Justice John Roberts of a government lawyer, as he gestured to his eight colleagues on the Court.
Chief Justice Roberts seemed surprised at the Obama Administration's sweeping assertion of power to monitor American citizens.
A federal appeals court had overturned the conviction of Antoine Jones, saying that placement of the GPS on his vehicle was a "search" from which he deserved some Fourth Amendment protection.
The issue is whether movement in a vehicle on city streets is "public" in nature. The growing ability of electronic devices to track suspects' movements has made the issue a controversial one, especially since lower courts haven't been able to agree on whether such clandestine surveillance is legal without a warrant.
The devices send an electronic signal to a satellite, allowing real-time plotting of a person's location and movements.
?Jones was co-owner of Levels, a Washington, D.C., nightclub. He was suspected of dealing cocaine on the side, and FBI agents attached a GPS device to his Jeep without getting a search warrant.
After being tracked 24 hours a day for a month, Jones was followed to suburban Maryland, where cops found almost 100 kilograms of coke and about $850,000 in cash.
Jones was later sentenced to life in prison.
The Obama Administration urged the Supreme Court to resolve the issue. The Court is being asked to decide whether such surveillance violated the Fourth Amendment and whether in this case it should be considered a "search," a "seizure," or both.
"GPS tracking is an important law enforcement tool, and the issue will therefore continue to arise," the Department of Justice said in its appeal. "This court should intervene to clarify the governing legal principles that apply to an array of investigative techniques, and to establish when GPS tracking may lawfully be undertaken."
But according to the U.S. Constitution, "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
Libertarian privacy expert and Cato Institute research fellow Julian Sanchez last month told Washington City Paper's Shani Hilton that it's "incredibly insane" that the conviction got Jones a life sentence in prison.
Since drug crimes are essentially victimless -- being a consensual transaction -- the "victim" (buyer) has no incentive to give up information, Sanchez said. "The only way you can catch people who are involved in consensual crimes is by pushing the boundaries of privacy," Sanchez said.
Government attorney Michael Dreeben met resistance from the Court when he suggested police have the authority to conduct surveillance without first establishing "probable cause," a legal standard requiring either a warrant or clear evidence that a crime is being committed.
"I have serious reservations about the way in which this (device) was installed," said Justice Anthony Kennedy.
"When that device is installed against the will of the owner of the car, that is unquestionably a trespass ... an unreasonable search and seizure," Justice Antonin Scalia said.
"The government's position would mean that any of us could be monitored whenever we leave our homes, so the only thing secure is the home," said Justice Ruth Bader Ginsburg. "This is the end point of your argument, that an electronic device, as long as it's not used inside the house, is OK."
"If you 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 in the United States," said Justice Stephen Breyer. "So if you win, you suddenly produce what sounds like 1984."
Some of the justices were equally skeptical of assertions made by Jones' lawyer, Stephen Leckar. Several justices expressed concern that a broad ruling might "hamper police surveillance" when they lack probable cause.
The justices have the option of focusing on just this appeal and this one electronic surveillance technique, or using it to resolve larger questions over a range of other current and future technologies.
The case is U.S. v. Jones (10-1259). A ruling is expected by Spring 2012.
Article From Toke of the Town and republished with special permission.