I See You! is Gps Tracking a Fourth Amendment Violation? (3)

in Criminal Defense, on

We have been talking about a criminal case argued before the U.S. Supreme Court. The defendant in the underlying case claims that police violated his Fourth Amendment right to privacy when they planted a GPS device on his car and tracked his comings and goings for four weeks. Though a judge had signed a warrant, there were problems with the planting of the device.

The trial court had allowed some of the GPS data to be entered into evidence. The defendant was convicted. An appeal followed, and that court overturned the conviction. In the past two posts, we have been reviewing that decision.

After determining that the planting of the device was a search, the court found that the search did violate the defendant’s reasonable expectation of privacy (because police monitored the GPS device 24/7 for four weeks). The court then turned to the use of the data at trial.

Had the inclusion of the GPS data been a harmless error, the court would have ruled in the government’s favor. But the data was critical to the government’s case; without linking the GPS data to cell phone records, the drug trafficking allegations held no water.

The court of appeals reversed the defendant’s conviction.

There has long been tension between electronic surveillance and the Fourth Amendment. The Supreme Court has said that no one should expect privacy on public roads, but one appellate judge commented that expanding that to 24/7 monitoring felt wrong. “There is something creepy and un-American about such clandestine and underhanded behavior,” he said.

We’ll finish this up in our next post.

Source: ABA Journal, “Keeping up with the Joneses — How far does the ‘Reasonable Expectation of Privacy’ go?” Erwin Chemerinsky, Nov. 1, 2011