The U.S. Justice Department successfully convinced the U.S. Supreme Court to review law enforcement's use of global positioning system devices to clandestinely track suspects in public during criminal investigations.
Last year, a three-judge panel of the U.S. Court of Appeals for the D.C. Circuit vacated a Washington-area man’s life sentence in a drug case because the authorities did not have a warrant to install a GPS device and monitor the man’s movement.
Prosecutors relied heavily on the data the GPS device provided to link the man, Antoine Jones, to a drug house in Maryland. The appeals court said the secret tracking violated Jones’ Fourth Amendment rights.
The court later divided 5-4 in refusing to hear the dispute en banc. DOJ pitched the case to the high court, which granted the government’s petition. (For more on the court’s decision today, check back with the National Law Journal’s Supreme Court Insider here.)
Jones’ appellate counsel, Stephen Leckar of Washington's Shainis & Peltzman, joined in the high court by O’Melveny & Myers partners Walter Dellinger III and Sri Srinivasan, urged the Court to keep in place the D.C. Circuit’s ruling.
“The United States government has revealed to the Supreme Court that it is heavily engaged in employing these devices without securing warrants,” Leckar said in a statement this afternoon. “The Fourth Amendment’s Warrant Clause was designed for a reason: to curb the ability of Government to abuse its powers. We contend that the use of such sense-supplanting, high-tech devices to engage in extended warrantless surveillance of people’s movement violates the Fourth Amendment and has grave implications for civil liberties.”
Leckar, who argued the case for Jones in the D.C. Circuit, said there is nothing “inherently wrong” with law enforcement’s use of GPS devices to aid the authorities in a criminal investigation. “On the other hand,” he said, “no one can dispute that they are extraordinarily intrusive. For that reason, they should only be used under circumstances that constrain law enforcement agents from the temptation to install them at their unfettered discretion.”
In urging the Supreme Court to review the case, Solicitor General Donald Verrilli Jr. said the D.C. Circuit ruling “leaves law enforcement officers with no practical guidance about when a warrant is required to monitor a vehicle on public roads using a GPS device.”
Verrilli also questioned the extent to which the D.C. Circuit ruling jeopardizes other law enforcement investigatory techniques.
“Many other non-search investigatory practices such as protracted use of pen registers, repeated trash pulls and aggregation of financial data can likewise reveal immense amounts of information about a person’s life,” Verrilli said. “The court of appeals offers no reason why its aggregation theory would not undermine those investigatory practices.”