The debate over warrantless GPS monitoring continues. (See previous posts
here). The latest news? The Department of Justice has filed a Petition of Certiorari asking the United States Supreme Court to review the ruling of the Court of Appeals in
Maynard v. United States. The U.S. Court of Appeals for D.C. in the Tenth Circuit held police can’t use global positioning satellite (GPS) technology to track a suspect’s car without getting a warrant. The full court, in a 5-4 decision last fall, refused to reconsider the decision. Now, the Justice Department is requesting that the Supreme Court accept Certiorari. The Court of Appeals expressed a distinction between a person "exposing" themselves in public on roadways, and police tracking that reveals all the places a person may travel over the course of a month:
In the August 6, 2010 decision, Judge Douglas Ginsburg wrote, "It is one thing for a passerby to observe or even follow someone during a single journey, . . . it is another thing for a stranger to [dog] his prey until he has identified all the places, people, amusements, and chores
that make up that person‘s hitherto private routine.”
The Justice Department now requests that this be considered by the Supreme Court:
“Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States,” government attorneys argued in their petition. “The court of appeals’ decision seriously impedes the governments’ use of GPS devices at the beginning stages of an investigation when officers are gathering evidence …”
Attorneys for Jones, who remains in prison, argued that federal authorities violated Jones‘ reasonable expectation of privacy under the Fourth Amendment when they used a GPS device to track his movements.
“This is an issue over which a philosophically diverse appellate panel and a majority of the full court agreed,” Stephen C. Leckar, Jones‘ appeals attorney, said after the Justice Department filing.
“The public has a constitutional right that a neutral magistrate will decide in advance whether the police can secretly install in your car an extraordinarily intrusive device that will record relentlessly every seven to 10 seconds where you’ve traveled for over a month,” Mr. Leckar said. “To allow anything less would encourage further erosion of the Fourth Amendment, whose purpose was to curb such abuses of power.”
The issue is heating up elsewhere in the Supreme Court where a Petition was filed by the defendant challenging a Ninth Circuit ruling in
United States v. Pineda-Moreno where the Ninth Circuit held that such a GPS tracking did not violate the Fourth Amendment. The Ninth Circuit Court ruled that such a track was not a search. The Ninth Circuit was asked to consider the case en banc and Judge Kozinski wrote an eloquent dissent, available here Circuit Court order denying en banc review, together with a vigorous dissent, is
here.. The Supreme Court case, is filed under Pineda-Moreno v. United States, docket 10-7515. [petition available
here].
Additional reporting available at Washington Post
here or Inside GNSS
here.
Stay tuned and keep preserving the issue of the GPS tracking in motions and investigation work.
