Federal prosecutors in Washington today urged the full U.S. Court of Appeals for the D.C. Circuit to reverse a controversial ruling in August that said law enforcement authorities must get a warrant to use a GPS device to track a suspect.
A three-judge appellate panel ruled law enforcement authorities violated a man’s right to privacy in tracking him 24 hours a day for a month with the use of a global positioning system device secretly attached to the man’s vehicle.
At trial, the authorities used the GPS data to link the man, Antoine Jones, the co-owner of a nightclub in Washington, to an alleged drug house in Maryland. The appeals court vacated Jones’ conviction and life sentence. Click here and here for earlier coverage.
Federal prosecutors today criticized the D.C. Circuit’s ruling, saying it conflicts with federal appellate court decisions around the country and with U.S. Supreme Court precedent. The government points to a 1983 ruling in the Supreme Court where the justices said a person traveling in a vehicle on public roads has no expectation of privacy. That case involved the use of a radio-controlled beeper to track a suspect.
The D.C. Circuit’s decision “raises enormous practical problems for law enforcement,” Assistant U.S. Attorney Peter Smith said in the government’s petition for a rehearing. Investigative agents of the Justice Department, Smith said, use GPS tracking “with great frequency.”
“The decision leaves unresolved precisely when the monitoring of a GPS device becomes a ‘search’ under the Fourth Amendment, and implicitly calls into question common and important practices such as sustained visual surveillance and photographic surveillance of public places,” Smith said in court papers.
Smith said the D.C. Circuit’s ruling offers no guidance to investigators about how long visual monitoring must go on before it triggers the requirements of the Fourth Amendment. “Investigators are left to speculate as to what is permissible,” he said.
If the panel decision is left in place, Smith said, common investigative techniques—including photographic surveillance of people in public—could be called into question.