US Spreme Court rules against Warrentless GPS

[dragon]

Wow they all agreed shocking talk about mind boggling.

The Supreme Court ruled unanimously Monday the authorities need a probable-cause warrant from a judge to affix a GPS device to a vehicle and monitor its every move.

The decision (.pdf) in what is arguably the biggest Fourth Amendment case in the computer age, rejected the Obama administration’s position. The government had told the high court that it could affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.

“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” Justice Antonin Scalia wrote.

In a footnote, Scalia added that, “Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”

In all, five justices said physically attaching the GPS device to the underside of a car amounted to a search requiring a warrant. Four justices, however, said the prolonged GPS surveillance in this case — a month — amounted to a search requiring a warrant, but was silent on whether GPS monitoring for shorter periods would require a warrant. All nine justices agreed to toss a District of Columbia drug dealer’s life sentence who was the subject of a warrantless, 28-day surveillance via GPS.

The justices agreed to hear the case to settle conflicting lower-court decisions — some of which ruled a warrant was necessary, while others found the government had unchecked GPS surveillance powers.

One of the Obama administration’s main arguments in support of warrantless GPS tracking was the high court’s 1983 decision in United States v. Knotts, in which the justices said it was OK for the government to use beepers known as “bird dogs” to track a suspect’s vehicle without a warrant.

In the Supreme Court case decided Monday, the U.S. Court of Appeals for the District of Columbia Circuit had ruled that suspected District of Columbia drug dealer Antoine Jones had his Fourth Amendment rights violated with the warrantless use of GPS attached underneath his car for a month. The lower court had reversed Jones’ conviction, saying the FBI needed a warrant to track Jones.

Scalia’s majority opinion, which was joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor, said the warrant was needed because placing the device on the suspect’s car amounted to a search, requiring the warrant.

In a separate opinion, written by Justice Samuel Alito, and joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, Alito wrote that Scalia’s opinion was “unwise” and said it should have examined “whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”

“For these reasons, I conclude that the lengthy monitoring that occurred in this case constituted a search under the Fourth Amendment,” Alito wrote.

During oral arguments in the case in November, a number of justices invoked the specter of Big Brother if the police could secretly attach GPS devices on Americans’ cars without getting a probable-cause warrant.

The last time the high court considered the Fourth Amendment, technology and privacy in a big-ticket case was a decade ago, when the justices ruled that the authorities must obtain search warrants to employ thermal-imaging devices to detect indoor marijuana-growing operations, saying the imaging devices carry the potential to “shrink the realm of guaranteed privacy.”

The Obama administration urged the court to reinstate the conviction and life sentence of Jones, a suspected cocaine dealer whose vehicle was tracked via GPS for a month without a court warrant.

The government told the justices during oral arguments that that GPS devices have become a common tool in crime fighting, saying it is employed “thousands” of times annually

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link

[Mr Bean]

It was not totally unanimous in the details as four justices speculated aloud that short term GPS surveillance might not be a search and thus unconstitutional. They were vague on the details but talked about the possibility of following someone for a day without a warrant via an attached GPS. Lucky they did not write an official opinion to that affect just mention it informally.

Just remember the Obama administration position that was struck down was that the US government could track any US citizen indefinitely without warrant. They are growing to be fans of that term "indefinitely" as they use it so often.

[Terralthra]

As I predicted.

[White Haven]

Unanimous condemnation of the specific case, and only a dissenting minority with regards to short-term GPS monitoring. If the latter had been a majority, it'd be something, but how many other substantial positions have hinged on 5/4 rulings in the past? Four justices means just about bupkiss.

EDIT: And good on the Supreme Court, for once. I still don't get why the government's position seems to so often consist of whining 'but we don't want to get a waaaarraaant....' I mean, shit, if it's a dubious, edge case, you have two choices. Get a warrant to play it safe, or try to go it cowboy without one and then act absolutely dumbfounded when someone who you know is guilty walks because you fucked around.

Get.
A.
Warrant.

[dragon]

edit never mind White Haven explained why the used two seperate phrases.

[Rahvin]

Unanimous condemnation of the specific case, and only a dissenting minority with regards to short-term GPS monitoring. If the latter had been a majority, it'd be something, but how many other substantial positions have hinged on 5/4 rulings in the past? Four justices means just about bupkiss.

EDIT: And good on the Supreme Court, for once. I still don't get why the government's position seems to so often consist of whining 'but we don't want to get a waaaarraaant....' I mean, shit, if it's a dubious, edge case, you have two choices. Get a warrant to play it safe, or try to go it cowboy without one and then act absolutely dumbfounded when someone who you know is guilty walks because you fucked around.

Get.
A.
Warrant.

Particularly since getting a warrant isn't a particularly onerous task. You can even do your surveillance now and get your warrant in a timely manner afterwards in some cases if there is sufficient justification to make an immediate move.

[dragon]

A little more on the 4 that had a different thought but still voted with the others.

But a group of four justices led by Samuel Alito concluded that the majority's reasoning was "artificial" and did not address larger legal concerns of searches in the digital age, including GPS. He said the court should have used this case to clarify the limits of police monitoring of wireless personal communication devices like mobile phones and Internet use.

"The availability and use of these and other devices will continue to shape the average person's expectations about the privacy of his or her daily movements," Alito wrote. "In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative."

But the U.S. Congress and most states have not kept up with the times, Alito said, leaving courts to sort out what level of privacy a citizen can expect.

link

Wow supreme court judge that actually has a clue.

[Edward Yee]

Am I reading the majority opinion correctly as being that they chose to dodge the issue of GPS tracking in general simply because they already had the physical trespass (taking place outside and after the warrant's terms) as a reason to rule against the administration?

[Simon_Jester]

Arguably that's the more important issue.

I can live with the idea of courts issuing warrants to put GPS trackers on people's cars for very long periods of time. What I can't live with is the idea of the police being able to ignore what it says on the warrant, or pretend they don't need one. If the police won't follow instructions on a warrant, it doesn't matter what form of search/tracking/whatever they use. Conversely, if they do follow the instructions, it doesn't matter very much.

[White Haven]

FBI Turns Back On 2,750 Of The 3,000 GPS Devices It Turned Off For Lack Of A Warrant
from the spy-spy-spy-away dept
In January, we wrote about the Supreme Court's somewhat surprising ruling on GPS monitoring by law enforcement, in which it suggested (but didn't fully say) that putting a GPS device on a car might need a warrant -- a pretty easy process that the FBI just didn't want to go through. Following this, we noted a report saying that the FBI scrambled to turn off 3,000 such devices that had been placed without a warrant.

However, in an NPR report about just how unhappy the FBI is about all of this, it notes that the FBI actually scrambled to file for warrants on most of those 3,000 devices, such that only 250 were permanently shut off. And yet it's still complaining about this whole "getting a warrant" thing. As Tim Lee notes, FBI director Robert Mueller is basically complaining to Congress that it's just so hard:
In Congressional testimony last month, FBI Director Robert Meuller said the ruling "will inhibit our ability" to do GPS tracking "in a number of surveillances where it has been tremendously beneficial." Mueller said that in cases where they didn't have probable cause, the FBI is forced to deploy teams of six to eight people to track suspects the old-fashioned way.

"If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR.
But, uh, isn't that why we require a warrant? It's supposed to be hard to spy on people. That's kind of one of the key principles of the Constitution. Again, as Lee notes:
Of course, that's kind of the point. Law enforcement's job would be a lot easier if we just did away with the Fourth Amendment and gave the police unfettered spying powers. But that would open the door to abuses of power, so the founders wisely limited government searches to cases where the government could demonstrate it had probable cause to believe that a crime had been committed.
Separately, the fact that so many of the devices were able to be turned back on via a warrant suggests that this intermediary review step isn't really a problem for the FBI in most cases. But it's one that likely stops significant abuse of the system.

So about all those warrants the FBI didn't want to get...
I'd be very interested to hear details of those 250 cases where they did not get a warrant. I'm sure some are simply because they have enough information to know they were barking up the wrong tree from surveillance they've already done. I'd lay good money that others are cases where they've already made arrests based on other, non-legally-dubious evidence. At the same time, the 'edge cases' probably fall inside those 250 still-inactive trackers, places where the FBI knew damned well, they couldn't get a warrant.

[Alyeska]

What gets me is the alarmist bullshit we got from the FBI. They had a better than 90% succes rate in getting warrants for these additional devices. And I love how they moaned that the warrant requirement will make it harder for investigations. Well no shit. The constitution isn't about making things easier. Get over it and do your damned job while staying legal.

GPS ruling is a feature, not a bug

[White Haven]

Necromancy is fun for the whooole family! (Actually an update. Don't hurt me.)

An appellate court has finally supplied an answer to an open question left dangling by the Supreme Court in 2012: Do law enforcement agencies need a probable-cause warrant to affix a GPS tracker to a target’s vehicle?

The Third Circuit Court of Appeals gave a resounding yes to that question today in a 2 to 1 decision.

“Today’s decision is a victory for all Americans because it ensures that the police cannot use powerful tracking technology without court supervision and a good reason to believe it will turn up evidence of wrongdoing,” said ACLU attorney Catherine Crump in a statement. “These protections are important because where people go reveals a great deal about them, from who their friends are, where they visit the doctor and where they choose to worship.”

It’s the first appeals court ruling in the wake of United States v. Jones, a Supreme Court case involving a convicted drug dealer. In that case, the Supreme Court justices ruled in January 2012 that law enforcement’s installation of a GPS device on a target’s vehicle constituted a search under the Fourth Amendment. The justices declined to rule at the time, however, on whether such a search was unreasonable and therefore required a warrant.

A number of court cases in the wake of Jones have grappled with the question of GPS trackers, but all of these cases have involved the use of GPS trackers prior to the Supreme Court decision. In these cases, the courts had to decide whether evidence obtained through the use of GPS trackers was still admissible in light of the Supreme Court decision. Several courts around the country have ruled that the evidence gathered prior to the Supreme Court ruling can be submitted in court because investigators were acting in good faith at the time, relying on what were then binding rulings in several U.S. Circuit Courts of Appeal that authorized the use of warrantless GPS trackers for surveillance.

Circuit courts in the 7th (covering Illinois, Wisconsin and Indiana), 8th (covering Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota) and 9th (covering Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon and Washington) all ruled prior to the Supreme Court case that warrantless GPS tracking was legal. Although the Third Circuit Court, where the current case was heard, did not have such a ruling in place prior to the Supreme Court decision, the government argued that investigators in this most recent case were operating under good faith based on prior rulings in these other districts.

The appellate judges rejected this argument, however, and ruled that the “good faith” exception did not apply.

The appellate case, U.S. vs. Harry Katzin, Michael Katzin and Mark Louis Katzin, Sr., involves a string of pharmacy burglaries committed in Delaware, Maryland and New Jersey in 2009 and 2010.

The crimes occurred mostly at Rite-Aid pharmacies, where the thieves cut external phone lines to disable the alarm systems. Harry Katzin was an electrician who, along with his two brothers, became targets of the investigation. They had criminal histories and were seen by police on a few occasions lurking outside Rite Aids prior to the lines being cut at the stores.

The police knew that Harry Katzin regularly parked his van on a particular street in Philadelphia so one early morning in December, after consulting with the United States Attorney’s office, but without obtaining a warrant, the FBI affixed a “slap-on” GPS tracker to the exterior of Katzin’s van. Using the device, investigators were able to map a trail directly connecting Katzin’s movements to a Rite Aid store. When they discovered that the store had been burglarized shortly afterward, police pulled over Katzin’s van and discovered all three brothers inside as well as merchandise from the store inside the van, including pill bottles and Rite Aid storage bins.

The brothers filed a motion to suppress the evidence. The government argued that a warrant was not required for the tracker and that the search of the car was based on reasonable suspicion. The government also argued that if officers were required to obtain a warrant and have probable cause prior to executing a GPS search, “officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices.”

The justices said the government’s statement “wags the dog rather vigorously,” noting that the primary reason for a search cannot be to generate evidence for law enforcement purposes. They also noted that “Generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.”

The justices also rejected the government’s argument that obtaining a warrant would impede the ability of law enforcement to investigate crimes.

“Consequently, we hold that — absent some highly specific circumstances not present in this case — the police cannot justify a warrantless GPS search with reasonable suspicion alone,” the justices wrote.

At this time, I would like to shout 'I TOLD YOU SO!' into an enormous megaphone directed towards the US law enforcement community. It's always a pleasure when a judge actually has his head screwed on straight in cases like this.

[Mr Bean]

The best part of this case is that it only exists because the police could not be bothered to get a warrant. Any reasonable judge out there would have granted said warrant. There was enough evidence to search their residences let alone just track them.

Yet they can't be bothered, warrants are for other people.

[Kitsune]

Just like with interrogations, how expensive would it really be to record the whole thing
Excuses are more like "Well, we cannot be bothered."

[Simon_Jester]

Now, to be fair, I wouldn't mind having warrantless GPS as a substitute for hot pursuit, say if a police officer installed a tracking device on a car so as to follow it without getting into a car chase.

I do mind if it is being used as a means to fish for information for long periods of time, because there's a reasonable expectation that the state does not keep tabs on your movements unless you are specifically singled out for attention by lawful processes.

[Dominus Atheos]

Police are allowed to do things like that without a warrant, like if they see a suspect go into a house they don't need a warrant to go in after him.

[Kitsune]

Now, to be fair, I wouldn't mind having warrantless GPS as a substitute for hot pursuit, say if a police officer installed a tracking device on a car so as to follow it without getting into a car chase.

Shoot a GPS at them, let them go, and then follow them home?

[Simon_Jester]

Now, to be fair, I wouldn't mind having warrantless GPS as a substitute for hot pursuit, say if a police officer installed a tracking device on a car so as to follow it without getting into a car chase.

Shoot a GPS at them, let them go, and then follow them home?

Right. Or, well, opportunistically plant the GPS on the vehicle you suspect is going to be used as a getaway car. Or something.

Maybe troll car thieves by leaving GPS and tracking bug-equipped cars out on the street with the keys in the ignition?

Point being, I think use of tracking and GPS devices in law enforcement, without a warrant, is only justified in cases where the police would be justified in assigning a tail to follow someone without a warrant. It's a labor-saving device, not a fundamentally different class of search or monitoring.

The police would NOT be justified in setting an officer to follow a random person for three days without a warrant, or at least I don't think they would. Perhaps I'm wrong?

[RogueIce]

Maybe troll car thieves by leaving GPS and tracking bug-equipped cars out on the street with the keys in the ignition?

They do that already. They're called bait cars, and the police can even go one step further by equipping them with remote shut off systems so the would-be thieves can't try to run.

[Borgholio]

They do that already. They're called bait cars, and the police can even go one step further by equipping them with remote shut off systems so the would-be thieves can't try to run.

Saw something on TLC about that. Remote engine cutoff and remote door locks to keep them from running. The looks on their faces when they got trapped was priceless.

[Simon_Jester]

Thought as much.

With tracking equipment you can use the car to make the thieves lead you to the chop shop- so there's more than one strategy involved, I'd think.

Question to the wise: does anyone know if it is, or is not, legal for the police to follow you for an extended time without a warrant?

[Terralthra]

So far as I know, so long as you are in public spaces, yes, they can. If they don't have probably cause, they can be subject to harassment complaints, but it's not a 4th Amendment violation, to my knowledge.

[Korto]

The justices said the government’s statement “wags the dog rather vigorously,” noting that the primary reason for a search cannot be to generate evidence for law enforcement purposes. They also noted that “Generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.”

That is, you cannot use your search, to justify your search.
For some reason this reminds me of hearing once how NSW judges were getting a tad annoyed with police who were bringing people before them on charges of Resisting Arrest, and nothing else.

[Kamakazie Sith]

There's really no reason not to secure a warrant on something like this. It takes about 30min to receive a response on an E-warrant. Back in the day it took several hours but E-warrants have eliminated that wait.

[Simon_Jester]

So far as I know, so long as you are in public spaces, yes, they can. If they don't have probably cause, they can be subject to harassment complaints, but it's not a 4th Amendment violation, to my knowledge.

And if you go onto private property, can they stage a stake-out?