Appeals Court Says Feds Need To Get A Warrant To Attach GPS Device On A Car

from the this-is-good dept

One of the more annoying things about the current Supreme Court is how it always seems to figure out ways to avoid actually tackling the key questions that people are asking. For example in the Jones v. US case, the court very carefully tiptoed around actually answering the question of whether or not law enforcement putting a GPS on a car required a warrant. Some of the Justices suggested it should, but it wasn't part of the official ruling. So, it gets left out there in the ether for people to try in other lawsuits. And now an appeals court has ruled on the issue, saying that a warrantless GPS tracking of someone's car is a 4th Amendment violation. The court goes into a full exploration of the 4th amendment and how it applies here. It's well worth reading (starting around page 18). Law enforcement's argument is in for a tough time:
We therefore begin with the following observation: under the physical intrusion theory of the Fourth Amendment, the police actions in this case — i.e., physical entry upon and occupation of an individual‟s house or effects for purposes of ongoing GPS tracking — are highly disconcerting.
It then goes through a thorough look at each of the government's arguments for why a warrantless GPS search could be deemed "reasonable" and finds each one wanting. The main one is that the government insists that if there's a "reasonable suspicion," they should be able to do a warrantless search. The court's not buying it.
While the interests the police wished to further in this case are certainly important, the same interests arise in every investigation where the police have a potential suspect. We are hard pressed to say, therefore, that the police can — without warrant or probable cause — embark on a lengthy program of remote electronic surveillance that requires almost no law enforcement resources and physically intrudes upon an ordinary citizen‟s private property.
This is in the third circuit and I'd imagine that there will be an appeal to the Supreme Court. Given the Court's avoiding the question in the Jones case, hopefully it will take it and support the argument that the 4th Amendment does apply to GPS searches and a lack of a warrant is unconstitutional. Of course, what I still don't understand in all of this is why law enforcement seems so averse to actually going out and getting a warrant. Is it really that difficult?


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  1.  
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    Christopher Best (profile), Oct 22nd, 2013 @ 1:19pm

    Why is law enforcement so uninterested in getting warrants?

    I'd assume that, considering the warrant application goes before a judge in a courtroom type setting, there is a penalty for perjury on a warrant application.

    Note that I'm not saying that I believe law enforcement is lying about why they want to track someone, just saying they'd be a lot less willing to track someone on a "hunch" if there was a possibility of being penalized later because the court decides their assumptions were more like fabrications.

    Of course, that's the whole point of the warrant process: to make sure extraordinary measures are only used in cases where they are warranted.

     

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    Deranged Poster (profile), Oct 22nd, 2013 @ 1:52pm

    "Why is law enforcement so uninterested in getting warrants?"
    Ever read PINAC's Blog?

     

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    Anonymous Coward, Oct 22nd, 2013 @ 1:55pm

    The Supreme Court will decide that it's not in fact a search, it's a tax on movement ... so it's ok.

     

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    CivilLibertarian (profile), Oct 22nd, 2013 @ 1:57pm

    Warrants

    I guess it is a bit tough for LEOs to get judges to sign off on warrants to spy on constitutionally protected political activity. Just ask the NYPD. Oh wait, they don't get warrants!

     

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  5. This comment has been flagged by the community. Click here to show it
     
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    out_of_the_blue, Oct 22nd, 2013 @ 2:00pm

    You just don't understand POWER, Mike. --Warrants are asking permission.

    "Of course, what I still don't understand in all of this is why law enforcement seems so averse to actually going out and getting a warrant."

    Thugs accustomed to using gov't power at their arbitrary whim (or more often its "color of law" appearance) don't like any limits being placed on them. You can see this in any video of traffic stop or other "police" action: any little show of resistance and the attack dogs start threatening, and many now go into berserker rage, up to outright murdering people who are no threat at all.

    As for the dig: it's actually a back-handed compliment. -- You're welcome. -- I think you'd be wise to muse on that. You are NOT typical of even the general populace, Mike; you seem to believe that reason and persuasion will eventually win the day because most people are rational and only need the case laid out. But that's definitely not true among gov't types.

    The world is ruled by thugs who use attack dogs in human form as their muscle.

     

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  6.  
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    Anonymous Coward, Oct 22nd, 2013 @ 2:01pm

    Re:

    Because legally, a warrant is an order saying "Why yes, I DID consent to the following actions or repercussions against this person". It's a signed order, that has the name of every local official on it and a judge.

    But warrants also work both ways, if something is seized during a warrant, the cops can't turn around and say "What? I never received that, you're crazy. I never took X evidence". Same goes with anything taken during a warrant, it's meant to preserve evidence and if a policeman wants a conviction, they will want the case to rely on evidence as little as possible and hearsay (that is to say, the RIGHT word of the CORRECT police) as much as possible.

    It also is their name on something that could be found to be a gross violation or something that was obtained with malice or ill-proceedings. Which they don't like either because they love flashing their badge when it comes time to own up to their mistakes. A warrant specifically says "This policeman in representing this investigation of this county was given permission by this judge to do *THESE ACTIONS*". Which they don't like one bit, because if it ever comes out that they were done maliciously, there is no denying who authorized it or where it came from.

     

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    Anonymous Coward, Oct 22nd, 2013 @ 2:02pm

    All you need do is pay attention and you will understand why police do not want to have to get a warrant. Today's law enforcement mentality is that police are not only above the law but are also judge, jury, and executioner. Hell, this is evident from reading tech dirt alone. Just last week there was a story about police emptying 100+ rounds into 2 unarmed suspects. Warrants violate the police state.

     

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    Anonymous Coward, Oct 22nd, 2013 @ 2:05pm

    "The main one is that the government insists that if there's a "reasonable suspicion," they should be able to do a warrantless search."

    Isn't the whole process of getting a warrant supposed to be a way to vet the "reasonable suspicion" as reasonable by a court of law?

    I'm sure the cops want to be able to define "reasonable". I know it's worked out reasonably well for the NSA, but that doesn't mean we just get to avoid the 4th Amendment.

    If you have "reasonable supicion", go show it to a court, get your warrant, and then spy/track/search. This way there is no question on if it's needed, reasonable, or right as it's already vetted in a court of law.

     

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    Anonymous Anonymous Coward, Oct 22nd, 2013 @ 2:17pm

    Alternative

    The Supreme Court could also just refuse to take the case, and let this decision stand. Then they don't have to commit to anything.

     

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    Anonymous Coward, Oct 22nd, 2013 @ 2:36pm

    "Of course, what I still don't understand in all of this is why law enforcement seems so averse to actually going out and getting a warrant. Is it really that difficult?"

    Maybe they know that the court will refuse to grant a warrant.

     

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    Anonymous Coward, Oct 22nd, 2013 @ 2:43pm

    "Of course, what I still don't understand in all of this is why law enforcement seems so averse to actually going out and getting a warrant. Is it really that difficult?"

    Look how the FISA courts give the NSA the same ability - all without due cause or concern for the 4th amendment. Or look to the FBI and their abuse of national security letters. It is unfortunately the status quo / modus operandi.

     

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    Michael Donnelly (profile), Oct 22nd, 2013 @ 3:00pm

    Why law enforcement doesn't want warrants.

    It's quite simple: without a warrant, a technique can be applied in bulk. There's no such thing (technically) as a "general warrant", so when a method of surveillance requires one, then it can only be used as tool once an investigation is underway.

    On the other hand, something that is "warrantless" can be applied to everyone, all the time.

    My general rule of thumb when I see a method of surveillance that does not require a warrant is to assume that it is already being used on everyone, all the time. That assumption has proven to be conclusively true many times in the last six months or so.

     

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    John Fenderson (profile), Oct 22nd, 2013 @ 3:01pm

    Re:

    Maybe they know that the court will refuse to grant a warrant.


    It's probably not that. The courts tend to be eager to approve search warrants. However, a search warrant does mean there's a public record of things like: why they're searching, what they're looking for, where they're looking, when they looked, etc.

    In other words, it's a mechanism of transparency. And we know how much they love transparency.

     

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    Anonymous Coward, Oct 22nd, 2013 @ 3:04pm

    Of course, what I still don't understand in all of this is why law enforcement seems so averse to actually going out and getting a warrant. Is it really that difficult?
    I've got one word for you: LOVINT.

     

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    Anonymous Coward, Oct 22nd, 2013 @ 3:17pm

    Re:

    Isn't the whole process of getting a warrant supposed to be a way to vet the "reasonable suspicion" as reasonable by a court of law?


    No. Not at all.

    The Fourth Amendment provides:
    … no warrants shall issue, but upon probable cause…

    While “probable cause” may sometimes be confused with “reasonable suspicion”, they are different standards.

    “Reasonable suspicion” is not mentioned in the Fourth Amendment. Instead, “reasonable suspicion” is something the Supreme Court came up with in Terry v Ohio (1968) in order to justify a veteran police officer's unprovoked assault and battery upon some suspicious characters who were probably up to no good, and who thus deserved to be assaulted.

     

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    Watchit (profile), Oct 22nd, 2013 @ 4:03pm

    deja vu... feels like I've heard this before

     

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  17.  
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    Anonymous Coward, Oct 22nd, 2013 @ 5:48pm

    I don't get why is so important the physicality of it all.

    The spirit and function of the 4th was to make sure people were not laid bare in front of capricious people with the power to harm them on a whim.

    Physically putting a GPS is no different than tracking someone using cellphone towers in the end the same information with varying degrees of visibility is obtained, and so the 4th should be there to protect that data no matter how it was collected.

    We can see law enforcement and other government branches abusing their power on a daily basis they didn't stop being vindictive, capricious, overboard or whatever other reason that exist, human nature didn't change in thousands of years it is still the same.

    So why are we having all those debates about if it is physical, third party or from the ether the origin of the information should make no difference, the spirit of the constitution is clear on what it should protect, maybe is time for everyone to start caring once again, because that rule there is important.

     

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    That One Guy (profile), Oct 22nd, 2013 @ 6:02pm

    Accountability

    Getting a warrant creates a paper trail, it makes it so what exactly they are looking for, and where they are going to look for it is written down somewhere, which is problematic if they don't actually know what they are looking for ('We'll know it when we see it'), or don't have enough evidence to go beyond simple hunches or 'feelings' that someone might be guilty, into a solid suspicion, based on evidence, that the suspect might be guilty of something.

     

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  19.  
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    Anonymous Coward, Oct 22nd, 2013 @ 9:00pm

    Why do they need to hide a gps device on someone's vehicle when the perp carries one in their pocket?

     

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  20.  
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    Anonymous Coward, Oct 22nd, 2013 @ 9:18pm

    Score 1 for the good guys!

    Score like a billion for the bad guys: thanks to the Supreme Court for many years now being downright atagonistic towards the citizenry 95% of the time (5% in their favor for getting violent video games right), and the entirety of executive & legislative branches being corrupt and against ever working to be morally right, no matter what.

     

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  21.  
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    Anonymous Coward, Oct 23rd, 2013 @ 3:41am

    But how are Feds supposed to catch those damn pirates?!

     

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  22.  
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    Anonymous Coward, Oct 23rd, 2013 @ 4:18am

    when the possibility is there for a judge, regardless of how high up the ladder he/she is could mean a career hold up or worse, everything usually that could be a violation of part of the Constitution or beneficial to the public is ignored or disregarded. the buck is always passed on, so someone else gets the booby prize! if they all had the balls to stand up for the law, instead of flouting it in favour of keeping certain security forces heads happy, there wouldn't be anywhere near the issues!

     

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  23.  
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    Jeremy Lyman (profile), Oct 23rd, 2013 @ 4:58am

    Re:

    Secret courts aren't real courts.

     

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  24.  
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    Jeremy Lyman (profile), Oct 23rd, 2013 @ 5:01am

    Re:

    Because they'd have to get a warrant to access the tracking information generated by the suspect's phone.

    They wanted a loophole. They can't have it.

     

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  25.  
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    Ninja (profile), Oct 23rd, 2013 @ 5:33am

    Re: Re:

    That. There's no real difficulty in asking for a warrant. Many law enforcement people like to complain that it's a slow process and that they may lose the opportunity however there are clear pr5oblems with that. Even in Brazil that has one of the slowest court systems in the world you can get a warrant within an hour and even if that's not enough there are very specific cases where the court will allow things that were started before a warrant (with very limited scope and time frame given you can get a warrant blazingly fast).

    The only explanation is what you just gave and it provides further evidence to why the 4th Amendment is damn important.

     

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  26.  
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    Jasmine Charter, Oct 23rd, 2013 @ 5:43am

    If only...

    If only all cops had a rubberstamp court like the FISA court... then why bother even getting a warrant?

    Attorney: Objection! They did not have a warrant for that!
    Judge: Is that true?
    Police: That would have taken time and the FISA court just agrees with whatever we tell them with no oversight.
    Judge: True dat. Objection overruled!

     

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  27.  
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    ThatFatMan (profile), Oct 23rd, 2013 @ 5:49am

    How much is on the Courts?

    I don't disagree that warrants present problems for police and the police state, and they don't like them.

    But, I also have to wonder how much has to do with the courts as well? Many courts seem to be backed up with cases, and judges love to clear their dockets. So adding warrants to a judges docket has the potential, I would think, to back things up even more. That means more waiting for everyone. Hard to say how much this factors in, but it is my $0.02 worth.

     

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