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In the upcoming October term, the Supreme Court will weigh in on the issue of whether police may use GPS tracking devices to watch over the movements of suspected criminals without first obtaining a warrant, or whether such activity violates an individual’s Fourth Amendment rights. Currently, the Seventh and Ninth Circuits agree that the use of tracking devices does not violate Fourth Amendment rights, while the D.C. Circuit holds that the use of GPS without first obtaining a warrant is unconstitutional.
At the heart of the circuit split is the issue of whether people have a reasonable expectation of privacy in the totality of their movements over a prolonged period of time. While the Ninth and Seventh Circuits found that movement on public highways is visible to anyone willing to watch, and therefore not subject to a reasonable expectation of privacy, the D.C. Circuit wasn’t persuaded. In his opinion, Judge Ginsburg held that the totality of one’s movements (a collection of trips) tells a different story than any one discrete journey. Therefore, while a person does not hold a reasonable expectation of privacy in a single drive, privacy as to one’s driving habits over a prolonged period of time is protected by the Fourth Amendment. The court will need to decide whether to accept the arguments asserted by the Ninth and Seventh Circuits or adopt the “mosaic theory” reasoning of the D.C. Circuit.
This is not the first time that the Courts have taken the opportunity to review whether tracking technology may be used by police without first securing a warrant. In United v. Knotts, the Court held that police could use beeper radar technology to track criminal suspects without a search warrant. While it may seem that Knotts controls the issue at hand, GPS technology is a much more intrusive technology than beepers. While beepers require that a receptor be within a certain physical proximity to the tracking device, GPS allows police to track from remote locations for months at a time. The potential for prolonged tracking is sure to be a central issue for the Court in Jones.
– Stephen Josey
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