When federal authorities got a warrant to install an electronic tracking device to track a drug suspect, agents acted in an "abundance of caution," a federal prosecutor said today in the U.S. Court of Appeals for the D.C. Circuit, where the government is defending its ability to secretly follow suspects without judicial supervision.
Peter Smith, an assistant U.S. attorney in the District of Columbia, argued that the authorities did not need a warrant to attach the global positioning system onto the vehicle of the suspect, Antoine Jones, the target of a cocaine trafficking ring in Washington. Jones was convicted last year and sentenced to life in prison. He is challenging the conviction.
The government’s position generated a lively discussion in the appeals court, where Judges David Tatel, Douglas Ginsburg and Thomas Griffith debated the extent to which a person has a reasonable expectation of privacy while driving on public roads. The panel appeared concerned about the lack of judicial supervision. Oral argument lasted more than an hour, far longer than the time allotted to the case. There was no immediate ruling.
Ginsburg said the fact the government got a warrant the first time suggests the government believed a warrant was required. Investigators secretly recorded the movement of Jones’ vehicle for a month before he was arrested in October 2005. “We’re not talking about one day here. We’re talking about a month,” Griffith said.
Smith said GPS does not generate any information that the authorities cannot otherwise obtain using traditional physical surveillance—following a vehicle secretly for hours on end. Traditional surveillance, he said, provides more detail than GPS—including the number of passengers and information about who is behind the wheel.
Only one federal appellate court has taken up whether a warrant is required for secret GPS surveillance. The U.S. Court of Appeals for the 7th Circuit ruled in favor of the government in 2007 when it said a warrant was not required. The appeals court noted that the target was an individual in rural Wisconsin and that there was no indication of mass surveillance.
The Supreme Court hasn’t taken up whether a warrant is required for GPS surveillance. But the court ruled in 1983 that the police didn’t need a warrant to install a beeper to track a vehicle’s movement in public. In that case, U.S. v. Knotts, the Court noted that a person traveling in an automobile on public road has no reasonable expectation of privacy in his or her movement. “This language isn’t talking about the technology of surveillance,” Griffith said today in court.
Jones’ appellate lawyer, Stephen Leckar of Washington’s Shainis & Peltzman, argued that the circumstance in the Jones case is different from the scenario the Supreme Court ruled on in Knotts. In the Jones case, police used GPS to supplant traditional surveillance, not to augment it, Leckar said. (Both the ACLU and the Electronic Frontier Foundation supported Jones as an amicus in the case.)
Tatel noted what he called the “big caveat” in Knotts. The late Justice William Rehnquist said in Knotts that if 24-hour surveillance were ever implemented, “[t]here will be time enough then to determine whether different constitutional principles may be applicable. The Jones case, Tatel said, presents that scenario.
Tatel said he was sympathetic to Leckar’s argument, especially considering the possibility of police following judges around. The line drew laughter from the audience.