Minority: Court's Gps Decision Doesn't Tackle the Tough Issues - Sparrow Law Firm

The U.S. Supreme Court issued a unanimous decision this week regarding GPS tracking of a criminal suspect, just one of the many criminal cases before the Court this term. The ruling upheld the lower court opinions that police need a search warrant before they can use a GPS device to track the movements of a suspect. A handful of justices say the opinion in the drug trafficking case does not go far enough.

Commentators agree. During arguments in November, the Court focused on more complex privacy issues; Orwell’s “1984” and Big Brother came up more than a few times. The Court seemed to signal that more than an unconstitutional search was at stake here. The issue was also about the role of ever-more sophisticated technology in citizens’ everyday lives.

In the decision, penned by Justice Antonin Scalia, the Court agreed that the use of the GPS device amounted to a search and did violate the suspect’s Fourth Amendment Rights. As far as privacy went, though, Justice Scalia wrote only that the use of GPS may be “an unconstitutional invasion of privacy.”

For Justice Samuel A. Alito, Jr. and three of his colleagues, the Court’s decision skirted the issue of the role of technology in 21st Century society. Alito argued that the holding addressed the fact of the GPS and how it was attached to the suspect’s vehicle (a trespass on private property) rather than the use of the GPS device over an extended period of time. He wrote:

For such offenses, society’s expectation has been that law enforcement agents and others would not – and indeed, in the main, simply could not – secretly monitor and catalogue every single movement of an individual’s car for a very long period.

Justice Sonia Sotomayor praised Alito’s argument but agreed with Scalia’s opinion. The Court, she said, only had to address the very narrow issue of the trespass on the suspect’s property, leaving the “difficult questions” for another time.

For more information about the case, go to our November series, “I see you! Is GPS tracking a Fourth Amendment violation?”

Source: Washington Post, “Warrants needed in GPS tracking,” Robert Barnes, Jan. 23, 2012