EvidenceProf Blog

Editor: Colin Miller
Univ. of South Carolina School of Law

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Sunday, August 31, 2008

Recalculating, Take 3: NY Times Publishes Story About Warrantless GPS Tracking Which Cites Terrific Law Review Article

I've written a couple of posts (here and here) addressing whether police are required to obtain a search warrant before attaching a GPS device to a suspect's vehicle.  In those posts, I agreed with a couple of judges who found that a warrant was required.  Specifically, in State v. Jackson, 76 P.3d 217 (Wash. 2003),  the Supreme Court of Washington noted, inter alia, that it perceived

     "a difference between the kind of uninterrupted, 24-hour a day surveillance possible through use of a GPS device, which does not depend upon whether an officer could in fact have maintained visual contact over the tracking period, and an officer's use of binoculars or a flashlight to augment his or her senses...[T]he intrusion into private affairs made possible with a GPS device is quite extensive as the information obtained can disclose a great deal about an individual's life."

Meanwhile, in his dissenting opinion in People v. Weaver, 2008 WL 2277587 (N.Y.A.D. 3 Dept. 2008), Justice Stein stated that

     "Specifically, I would reject the 'premise...that information legitimately available through one means may be obtained through any other means without engaging in a search....'  Instead, I would adopt the principle that 'a privacy interest...is an interest in freedom from particular forms of scrutiny'...and would find that '[a]ny device that enables the police quickly to locate a person or object anywhere ... day or night, over a period of several days, is a significant limitation on freedom from scrutiny'...and upon a person's reasonable expectation of privacy, even if it occurs in a place where an expectation of privacy would not be considered reasonable under other circumstances. Stated otherwise, while the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause."

Well, The New York Times has an article on the issue, "Police Using G.P.S. Units as Evidence in Crimes."  The article mentions a few more cases where police have used G.P.S. devices to track defendants and cites to a terrific article I hadn't noticed before.  That article is Tied Up in Knotts?: GPS Technology and the Fourth Amendment, published by University of Maryland School of Law Professor Renee Hutchins in the UCLA Law Review.  In the article, Hutchins argues that GPS-enhanced surveillance should be deemed a search within the meaning of the Fourth Amendment and, as such, must be preauthorized by a warrant supported by probable cause.  I would highly recommend it to anyone with an interest in this area of the law.

(Hat tip to reader Paula Gordon)

-CM

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