A lawyer for a man whose life sentence was vacated because the government improperly tracked his movement with a GPS device is urging a federal appeals court to deny the Justice Department's request to re-examine the court's earlier ruling.
In August, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit ruled for the defendant, Antoine Jones, who had been serving a life sentence for his alleged role in a drug trafficking conspiracy.
The appeals court said the government’s use of a global positioning system device without a warrant to track Jones’ movement violated his rights under the Fourth Amendment. The court vacated his conviction and voided his life sentence. Last month, DOJ attorneys asked that the full appeals court pick up the dispute to erase the panel decision.
DOJ lawyers said in their petition that the appeals court ruling could call into question common law enforcement techniques such as photographic surveillance of people in public. Prosecutors said the opinion doesn’t help the authorities distinguish between acceptable monitoring and monitoring that requires a warrant. DOJ said law enforcement officers use GPS tracking with “great regularity.”
A lawyer for Jones, Stephen Leckar of Washington’s Shainis & Peltzman, said the government’s claim the “sky is falling” offers no credible basis that the appeals court ruling will interfere with law enforcement needs.
"If agents want to use one of these devices to track and record the whole of one’s movements for prolonged periods of time, then surely it should be no undue burden to demand that they first satisfy a neutral and detached federal court that probable cause exists to do so," Leckar said in an e-mail.
Police regularly search homes and cars, Leckar noted in court papers. “Yet the courts have never used that as a reason to ignore the Fourth Amendment,” he wrote.
Three state Supreme Courts have concluded the government needs a warrant to initiate GPS tracking, but federal appellate courts are divided on the issue.
Relying on Supreme Court cases from the early 1980’s, law enforcement has not sought a warrant before using GPS devices without a warrant. These precedents established that the use of electronic tracking devices on vehicles did not constitute a search – and, accordingly, did not implicate the Fourth Amendment – because people do not have a reasonable privacy interest in the movement of their vehicles when traveling on a public roadway. Until recently, Federal courts have, on the basis on these decisions, almost universally upheld the use of GPS tracking devices. I agree, however, with a recent decision by the D.C. Circuit Court recognizing that people have a reasonable expectation of privacy in the totality of their movements over the course of a period of time.
I have written on this at stockycat.blogspot.com. I have also posted an article I am publishing this winter on the subject, a draft is here: https://www.box.net/shared/td5vqcrelf
Posted by: Joshua Engel | October 24, 2010 at 12:58 PM