Judges Restrict Use of GPS-Raise Questions About Privacy Rights in Digital Age

by Mike Mintz on January 25, 2012 · 0 comments

in Legal Technology,martindale.com

The U.S. Supreme Court recently voted unanimously that police violated the Fourth Amendment of the U.S. Constitution when they attached a GPS system to a suspect’s vehicle without first obtaining a search warrant.  However the Court’s reasoning was closely split 5-4, indicating that privacy issues in the age of cell phones, e-mail, etc. will remain a thorny issue for years to come.

According to Justice Scalia, the author of the majority opinion, the Fourth Amendment’s protection of  “persons, houses, papers and effects” extends to a person’s private property, including his motor vehicle.  The police physically occupied the suspect’s motor vehicle in order to obtain information, and this, Justice Scalia maintained, was a violation of a person’s right not to be subject to an unreasonable search and seizure. Justice Scalia stressed that even a small trespass onto personal property in order to obtain information constituted a search under the Fourth Amendment.

The minority opinion, authored by Justice Alito, agreed with Justice Scalia, but wanted to extend the limitation further, noting that the search violated a person’s reasonable expectation to privacy because the police monitored the suspect’s movements for months. Justice Alito contended that the Fourth Amendment should not only safeguard a person’s property against trespass but should be enlarged to protect a person regardless of where he was. The majority refused to extend the restriction that far, arguing that the simple act of placing the GPS on the car invaded the suspect’s property, similar to a warrantless home search.

Alito further argued that Justice Scalia’s strict approach left open a whole host of thorny issues because given the ever-evolving field of technology, law enforcement officials do not have to physically touch a car in order to monitor its movements, citing as an example smartphones that monitor one’s location.

While Justice Scalia agreed that monitoring someone without perpetrating a physical trespass might be an unconstitutional invasion of privacy, he refused to resolve the issue, leaving it for the future when a specific case involving those issues arises.

The Supreme Court decision arose from a police operation that resulted in the capture of significant amounts of cocaine and cash when law enforcement raided a home. Law enforcement had watched the suspect’s home for months, including wiretapping his cellphone pursuant to a search warrant. However, the suspect’s conviction was thrown out on appeal because the police had followed him for months with a GPS without first obtaining a valid warrant.

Justice Sotomayor joined Justice Scalia’s majority opinion, but she stressed in a separately worded opinion the troubling privacy issues arsing from ever-evolving technology. As an example, she pointed out that routine actions are tracked by private websites.  She noted that legal precedent does not protect a person against third parties’ actions, for example when telephone companies voluntarily turn over information to the government on an individual.  She had strong reservations about this practice and asserted that people would not willingly submit to the warrantless disclosure to the government of their personal information.

This case raises many questions about the extent to which law enforcement can go in conducting police searches in the new digital age.  This issue will come up again and again in the future, especially as new technological advances are made. How far do you think the police can or should go in the digital age to conduct searches and seizures?

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