The authorities violated search and seizure law when they installed a GPS device on a drug suspect’s vehicle without a warrant and tracked its every move for a month, lawyers representing civil rights groups argued in an amicus brief filed today in the U.S. Court of Appeals for the D.C. Circuit.
The ACLU National Capital Area, joined by the Electronic Frontier Foundation, filed the brief in support of two D.C. men who are challenging their convictions on appeal. Bryan Cave partner Daniel Prywes and EFF general counsel David Sobel teamed up with the ACLU and the EFF on the brief.
The D.C. Circuit has not weighed in on the legality of warrantless GPS surveillance, and this is the first time the ACLU National Capital Area has filed court papers that question the police use of GPS. “It’s an important issue because this ever-improving technology, if not subject to careful court supervision, will allow the government to turn into Big Brother in way that is not far removed from what George Orwell foresaw in 1984,” the ACLU National Capital Area legal director, Art Spitzer, says.
Spitzer and the lawyers on the brief say the use of a GPS tracking device replaces human eyes, enables 24-hour surveillance of unlimited numbers of people, and allows the authorities to follow a vehicle onto private land.
“These GPS trackers give the police the ability to remotely monitor individuals’ physical locations with great accuracy, without leaving the stationhouse,” the amicus lawyers say in the brief. The lawyers note that the Los Angeles Police Department has installed in its fleet guns that can launch GPS-enabled darts at passing cars.
GPS devices reveal “a plethora of intimate information about a person’s life, including his or her travel to political meetings, places of worship, news media offices, or the homes of friends or lovers,” the lawyers wrote in the brief. GPS surveillance would have revealed the identity of “Deep Throat” during the Nixon administration, the lawyers say.
The ACLU and EFF are participating in support of two men convicted and imprisoned for their roles in a drug distribution operation in the District and Maryland. Antoine Jones began serving a life sentence in May for conspiracy to distribute cocaine; the co-defendant, Lawrence Maynard, was sentenced to about 13 years in prison. Jones owned and Maynard managed Levels nightclub in D.C., according to court records in U.S. District Court for the District of Columbia.
In September 2005, Judge Ellen Huvelle of D.C. federal court authorized investigators to install a GPS device on Jones’ Jeep. The device was attached in Maryland—outside the scope of the warrant—and it was put on after the warrant expired, according to court records.
Prosecutors say in court records that the police used GPS to follow the vehicle to and from drug houses. The device recorded the movement of the vehicle every 10 seconds for a month and ultimately produced more than 3,000 pages of records.
When the GPS stopped working, new batteries were installed on the device in Maryland and without a warrant, according to Jones’ lawyer, Stephen Leckar, senior counsel with D.C.’s Shainis & Peltzman. Michael Lawlor and Sicilia Englert of Lawlor & Englert represent Maynard.
Driving is essentially an anonymous act because one driver sees another for a second and has no interest in whether the other person is going, Leckar said in an appellate brief. A GPS device, Leckar said, is “dramatically intrusive” because it allows monitoring in ways that no police officer could do.
Huvelle denied a motion to suppress evidence, saying that the GPS did not violate Fourth Amendment search and seizure restrictions because investigators could have watched the driver and the vehicle as it went around town, court records show.