The Justice Department today urged the U.S. Supreme Court to resolve a conflict among federal appellate courts over whether law enforcement officers must obtain a warrant before using GPS technology to covertly follow a person.
Last year, the U.S. Court of Appeals for the D.C. Circuit vacated the life sentence of a Washington area man named Antoine Jones, saying the government violated Jones' privacy rights in clandestinely tracking his movement for a month in a drug trafficking investigation.
Federal prosecutors used data from a global positioning system device to link Jones to an alleged drug house in Maryland, where the authorities found nearly 100 kilograms of cocaine and about $850,000 in cash. Jone was the co-owner of a nightclub in Washington.
At issue in the Jones case is the extent to which his movement in a vehicle on streets in Maryland and in Washington was public and whether the warrantless GPS tracking constituted a “search” under the Fourth Amendment. The appeals court, in a 5-4 vote, rejected rehearing the dispute, setting up the potential for a Supreme Court case.
Today, the Justice Department filed a petition (PDF) asking the Supreme Court to step in. Acting Solicitor General Neal Katyal and Assistant Attorney General Lanny Breuer of the Criminal Division are among the lawyers on the petition. DOJ lawyers said federal appellate courts are squarely in conflict over whether the authorities need to obtain a warrant to use GPS tracking technology.
“GPS tracking is an important law enforcement tool, and the issue will therefore continue to arise,” the Justice Department said. “This Court should intervene to clarify the governing legal principles that apply to an array of investigative techniques, and to establish when GPS tracking may lawfully be undertaken.”
Justice attorneys said the D.C. Circuit’s ruling would “stifle” the ability of investigators to follow leads at the beginning of a criminal investigation and said the decision provides no guidance to law enforcement about when a warrant is required before attaching a GPS device to a vehicle.
The Justice Department said the D.C. Circuit’s decision conflicts with the Supreme Court’s “longstanding precedent that a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, even if ‘scientific enhancements’ allow police to observe this public information more efficiently.”
The government surveillance in the Jones case “raises no concerns about mass, suspicionless GPS monitoring,” the Justice Department said.
Jones’ appellate lawyer, Stephen Leckar of Washington’s Shainis & Peltzman, said it’s “regrettable the Obama administration, which touted itself as a breath of fresh air, seems to be resistant when it comes to advancing the Fourth Amendment’s interest in protecting a citizen’s right to privacy.”