Tuesday, August 23, 2011
Lenese C. Herbert (Albany Law School) has posted Challenging the (Un)Constitutionality of Governmental GPS Surveillance (Criminal Justice, Vol. 26, No. 2, Summer 2011) on SSRN. Here is the abstract:
Police departments across the country are relying upon Global Positioning System (GPS) devices to initiate or further criminal investigations. GPS-enabled surveillance allows law enforcement agents to collect continuous, detailed, and real-time location information, without incurring the commensurate costs in dedicated employee resources. With increasing frequency, federal, state, and municipal law enforcement agencies are attaching GPS devices to vehicles, often without a warrant, to obtain evidence.
Unsurprisingly, challenges to the practice are increasing as well, with challengers arguing that the government’s installation of GPS devices on motorists’ vehicles and subsequent around-the-clock monitoring -- often for weeks or months -- violates individual privacy rights under federal and state law. Motions to suppress GPS-enabled surveillance data in criminal prosecutions unanimously invoke the individual’s first line of defense in privacy protection: the U.S. Constitution’s Fourth Amendment prohibition against unreasonable governmental searches; some also invoke the amendment’s prohibition against unreasonable seizures.
This article proceeds step-by-step through the Fourth Amendment analysis of a GPS case and the issues of interpretation at each step. The U.S. Supreme Court has yet to speak on this issue and, thus far, federal circuits are split and state courts are divided based on their interpretations of the Fourth Amendment as well as their own precedent and state constitutional provisions.