Eastern District of California Blog

Supreme Court To Review Warrantless GPS Tracking Case

Today, the Supreme Court granted certiorari to review the D.C. Circuit's U.S. v. Jones decision and asked the parties to brief the following issue: "Whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent."  See The next big privacy case; see also my electronic surveillance posts.  Maybe the Fourth Amendment won't be as obsolete as Ninth Circuit Chief Judge Alex Kozinski and his clerk Stephanie Grace think, "Remember what the Fourth Amendment protects? No? Just as well." 

As electronic surveillance and Fourth Amendment scholar Professor Orin Kerr notes, the Court's cert grant is particularly interesting because it framed the question under review in a way that includes whether just the warrantless installation of a GPS tracking device (in contrast to prolonged GPS tracking) may violate the Fourth Amendment--an issue that the lower courts have universally rejected but that Prof. Kerr believes deserves further scrutiny. 

More recent electronic surveillance related pieces I found interesting: 

"Free To Search and Seize," David K. Shipler, NY Times Op-Ed, 6/22/11

"Don't Tread on my Cloud," Leslie Harris, Huffington Post, 6/20/11

"Bill to Require Warrant for Location Tracking Introduced in Congress," Talk Left, 6/19/11

More On Electronic Surveillance/Communication And The Fourth Amendment

Following up on my Electronic Surveillance and the Fourth Amendment post last month, check out Steve Treglia's article The Fourth Amendment In The World of E-Communications, Prof. Laurie Levinson's piece Do GPS Tracking Devices Violate the Fourth Amendment?, Steve Titch's Data In The Cloud Needs Fourth Amendment Protection, and CNN's Warrantless Cell Phone Searches Spread To More States.  I found all on fourthamendment.com, which I highly recommend.  See also Orin Kerr, Email accounts, the warrant requirement, and the territorial limits of court orders and Delaware courts: Police use of tracking devices at issue.

Fourthamendment.com also pointed me to this Mink v. Knox opinion where the Colorado federal district court found a prosecutor civilly liable for authorizing a search warrant to look for evidence of "criminal libel" from a blogger who had criticized a university professor online.  See Reporter's Committee for Freedom of the Press.  This case is notable on many levels.  The plaintiff first won a rare TRO enjoining the threatened prosecution in state court.  Thereafter, the Tenth Circuit reversed the district court's ruling that the prosecutor was entitled to absolute immunity and, in a second appeal, reversed a grant of qualified immunity.  Congratulations to my former co-clerk and now ACLU of Colorado legal director Mark Silverstein, one of plaintiff's counsel.  Briefs and decisions available at ACLU-Colo.

Cutting Edge Defense Issues, Vol. 1: Electronic Surveillance And The Fourth Amendment

"The Man Who Trades Freedom For Security Does Not Deserve Nor Will He Receive Either."  --Benjamin Franklin

While I'm in Boston to watch the Cubs play the Red Sox in Fenway for the first time since the 1918 World Series, Boston.com, 5/15/11, this seems as good as time as any to debut my series on cutting edge criminal defense issues.  (No, I'm not writing this in Boston.  I finished it before I left Sac.)  This series is to help criminal defense attorneys spot unsettled legal issues and potential defenses perculating through the courts, which can be raised now in anticipation of changes in the law later.

There may be no bigger area of unsettled legal questions in criminal law right now than the application of the Fourth Amendment to various forms of electronic surveillance and communication, such as cell phones, emails, instant messaging, and GPS tracking.  Smart phones now routinely include GPS tracking that may be recording a trail of every where you've been.  "It's Tracking Your Every Move And You May Not Even Know," NY Times, 3/26/11.  And, if it's there, expect government agents will be trying to find ways to use it.  See, e.g., "ACLU: U.S. Attorney Used GPS To Track Cell Phones." 

Appellate courts are starting to recognize that individuals may have a "reasonable expectation of privacy" from government intrusion into these new forms of surveillance and electronic communication, thereby triggering Fourth Amendment protections.  Last year, the Sixth Circuit held that the Fourth Amendment requires the government to obtain a search warrant to obtain emails (though the court declined to apply the exclusionary rule).  U.S. v. Warshak, No. 10-0377; see also EFF Amicus Brief.  And the D.C. Circuit held that officers' long-term GPS surveillance of a vehicle requires a warrant, U.S. v. Maynard, No. 08-3030 , causing a split with, among others, the Ninth Circuit.  U.S. v. Pineda-Moreno, No. 08-30385 and Pineda-Moreno Order Denying Rehearing En Banc With Judge Kozinski's Spirited Dissent.

Last month, the United States asked the Supreme Court to review the D.C. Circuit's GPS decision, see U.S. v. Jones Cert. Petition (formerly U.S. v. Maynard), and Legal Times Blog Summary, 4/15/11, and it appears that the high court is holding the defendant's cert petition in the Ninth Circuit's Pineda-Moreno GPS case pending disposition of the government's petition in Jones.  Scotus Blog, 5/17/11; U.S. Response To Pineda-Moreno Cert Petition.  I'm not smart enough to predict when and how the Supreme Court will decide these and similar questions.  But if these issues are not raised in the district courts now, they may be lost forever.  

To jump start your research, here are couple of excellent outlines by UNC School of Government professor Jeff Welty.  Warrantless Searches Of Computers and Other Electronic Devices, April 2011 and Warrant Searches of Computers, May 2011.