1984 Is No Longer Fiction: Supreme Court Considers Warrantless GPS Tracking

It sure looks like the sitting justices on the United States Supreme Court are on the right track (pun fully intended) from the questions asked yesterday in United States v. Jones , a case in which the U.S. Solicitor General’s Office is arguing that the police are entitled to secretly install a Global Positioning System ( "GPS") on a motor vehicle without a warrant in order to track a crime suspect’s movement. The Solicitor General tried to limit its arguments to GPS monitoring of vehicles in public places but not in homes, relying on the Supreme Court’s 1983 decision authorizing the warrantless use of "bird dog" or mobile beeper devices to track a vehicle’s movement in public places, Justices several times invoked George Orwell’s 1984 and its "Big Brother is Watching You" manifesto in questioning the government about its position.

Indeed, Justice Breyer went so far as to say "...then there is nothing to prevent the police or government from monitoring 24 hrs a day the public movement of every citizen of the United States..." and that "It sounds like 1984." He’s not too far off the mark in making this observation given that unfettered GPS monitoring of vehicles in public places will almost certainly give rise to unfettered placement of GPS devices on private planes, boats, cycles and even on individuals themselves) to track movement in public places. Does anyone truly believe that our Constitution doesn’t/shouldn’t protect against that?

Moreover, reliance on the beepers of the early 1980s in order to further erode one’s 4th amendment privilege to be free from unreasonable government intrusion and searches and seizures is misplaced given the substantial differences between the technologies in question. As was pointed out in a friend-of-the -court brief filed on behalf of the defendant in Jones, bird-dogging beepers allowed a surveillance team to stay on top of the vehicle they are actively following, thereby making visual surveillance easier and less likely to break-off. By contrast, GPS monitoring will allow the police to locate a vehicle without having to follow it or even observe it in transit (which really is the underlying premise/fiction of public place applicability; if it’s in public, one can readily observe it).

Also, whose decision is it going to be regarding the distinction between public and private places? Actually, that’s a rhetorical question since the real-time "call" on that will, of course, be made by the police creating the inevitable cat-out-of-the bag result for any hapless defendant. And when exactly is it that monitoring must be terminated? Aren’t we also then inviting so much additional gray area and subject-to-interpretation scenarios as to risk eventually rendering the public/private distinction obsolete? Hasn’t the Supreme Court already diminished one’s privacy interests in his or her car to such an extent that that vast majority of warrantless motor vehicle searches are all but automatically upheld these days anyway? Do we really want to diminish them even more? In short, United States v. Jones truly is a case where the Supreme Court needs to draw a line and say "enough!" If they don’t, it really will be "1984 all over again."

If you have been accused of a crime and you need a lawyer to represent you please contact Brad Bailey at 781-589-2828