This case is about new technologies and our expectations of privacy. Phoenix police, working together with federal agents, attached a GPS device to the Cuevas-Perez’s car, which transmitted the position of the car in real time. The car was tracked by GPS from Phoenix to Illinois, where Illinois state police pulled Cuevas-Perez over for a minor traffic violation. Police found heroin in the car, and Cuevas-Perez was arrested.
The question is whether the Fourth Amendment guarantee against unreasonable searches and seizures protects suspects from police tracking their whereabouts using a GPS tracker without a warrant. Under normal circumstances, the ruling would be easy. In United States v. Knotts (460 U.S. 276), the Supreme Court ruled that technological advances don’t fundamentally change what is an unreasonable search or seizure. If Police could have gotten the evidence without running afoul of the Fourth Amendment before (such as by tracking a car in person), then using technological devices to do it from afar doesn’t run afoul of the Fourth Amendment either. In United States v. Garcia (474 F.3d 994), the 7th Circuit ruled that warrantless GPS surveillance didn’t run afoul of the Fourth Amendment because it was a more technologically advanced way to conduct a kind of search that was already allowed.
But, Knotts was handed down in 1983, and Garcia in 2007; technology now is different from technology then. In fact, recent revelations about how much your phone knows about your whereabouts makes police attaching a tracking device on your car seem quaint by comparison. (Oh, yes, you can get your very own GPS tracker.) Law enforcement will, of course, assure us that it’s not all bad. Consider the high profile case from last summer in Chicago, in which a foreign exchange student was clubbed over the head with a baseball bat for her wallet and cell phone. Without ubiquitous tracking, [law enforcement officers?] likely would never have found her attackers.
The court wound up fracturing into three separate opinions, articulating three different rules for how to think about GPS tracking and law enforcement. Even though 7th Circuit precedent is clear on the matter, a recent case in the D.C. Circuit held that prolonged GPS surveillance amounts to a search because of just how invasive the sort of data the government can collect is (United States v. Maynard, 615 F.3d 544). That case is currently before the Supreme Court as United States v. Jones. (See Scotusblog for coverage).
Cudahay, in the controlling opinion, ruled that Maynard would not control, because in this particular case, the GPS device was attached for tracking a single particular journey, and didn’t amount to continuing surveillance. Basically, if the battery life of the GPS device is short enough, GPS tracking doesn’t constitute a search.
The real action in the case is in Flaum’s concurrence and Wood’s dissent. Wood argues that a GPS is “a device whose capabilities are so far beyond anything the Court saw in Knotts that we have difference in kind, not just a difference in degree.” But what makes it different in degree? Here, Wood looks to Supreme Court jurisprudence at a more general level. The relevant test is articulated in Katz v. United States (389 U.S. 347), “(1) does the person have a reasonable expectation of privacy; and (2) is that expectation reasonable, or put differently, is it one that society should recognize.”
Wood changes the question. Instead of asking whether new technology might raise new constitutional hackles (it’s always easy to say no, new technology doesn’t mean a new constitution), Wood focuses on how intrusive surveillance is, and whether that intrusiveness triggers Fourth Amendment scrutiny. The paradigm example is of wiretaps, raised in Katz. In Katz, the standard for search and seizure changed from what constituted a protected area (a home? a phonebooth?) to the reasonable expectation of privacy. Thus, phone calls would be protected because of how intrusive a wiretap is, regardless of whether the call was conducted from a landline at home, by cell phone, or over Skype.
Flaum, however, would like to stick close to the case law. The basic gist of his argument is that a privacy right “society should recongize” should not be the sort of question a court decides, rather it is a question for the legislature. A circuit court of appeals, rather, follows precedent, and the precedent that controls is Maynard. Moreover, the case law is replete with examples of police investigatory powers, sans warrant, that make ordinary people, even first year law students, aghast. Police may root through your trash, follow you with a network of surveillance cameras, hover over your house in a helicopter (and these days, surely a camera drone as well).
And then we hear a familiar refrain, that whatever policy questions might be raised ought to be sorted out by the legislature, not the courts. But of course, this wouldn’t satisfy Wood’s complaint that the intrusiveness runs afoul of the Fourth Amendment. If GPS tracking did run afoul of the Fourth Amendment, as she claims, then legislation would be irrelevant–the Constitution controls. The question remains whether the expectation that police aren’t tracking you by GPS is reasonable.
And if I were to hazard an answer, I would say yes, it is. (In a separate but related question, I also think the Supreme Court will rule the same way — at least one of Sotomayor or Kagan will side with the law-and-order side of the court, whatever Kennedy decides.) GPS and related technologies have changed the way we perceive the world, or at least they should. Want your Garmin to give you turn by turn directions, or track your location, speed, altitude, etc.? It has to know where you are at all times. We were all outraged by our phones tracking our locations, but continued using them. Constant video surveillance on city streets and in storefronts? We acquiesced to that long ago.
(There is also a more pragmatist argument, that if police aren’t allowed to use GPS devices to track suspects in an ongoing investigation because of how intrusive it is, then what other techniques are they no longer allowed to use? The thing is, that’s not a constitutional argument, and even if it were, the prohibition of GPS trackers could be construed as a narrow, per se rule amounting to an irrebuttable presumption that GPS tracking, like a wiretap, amounts to a search and thus requires a warrant.)
If the amount of privacy we should expect is tied to what society takes to be reasonable (taking as our guide how society acts, not its opprobrium at its own actions), then any privacy in public has disappeared long, long ago. Is this a lamentable state of affairs? Surely, it is. But the result is clear, I think. Warrantless GPS tracking is here to stay.