The Richmond Register

Local News

November 28, 2011

Supreme Court hears GPS use argument

RICHMOND — The evolving capabilities of technology has the U.S. Supreme Court debating whether the warrantless use of GPS trackers is a violation of the Fourth Amendment right to privacy.

Some Madison County law enforcement agencies have admitted to using them in the past without first obtaining a warrant.

The case heard Nov. 8 by the court was about Antoine Jones, a Washington, D.C., man who was trailed by the FBI via a Global Positioning System tracker. He was convicted in 2008 for allegedly possessing and distributing more than 50 kilograms of cocaine.

Most of the evidence used in court derived from the use of the GPS tracker, and Jones received a life sentence.

Last year, the U.S. Court of Appeals for the District of Columbia sided with Jones and disagreed that federal agents have the right to do covert, 24-hour monitoring of a person’s whereabouts.

The appellate court maintained that evidence gathered in the case was a violation of the Fourth Amendment.

During the hearing, Michael R. Dreeben, deputy solicitor general for the Department of Justice, tried to convince the nine justices that the GPS use in the case did not violate Jones’ right to privacy.

Dreeben’s argument included references to Kate v. United States and Knotts v. United States, both cases where the right to privacy was questioned.

“Since the court’s decision in Katz v. United States, the court has recognized a basic dichotomy under the Fourth Amendment,” Dreeben said, according to a hearing transcript. “What a person seeks to preserve as private in the enclave of his own home or in a private letter or inside of his vehicle when he is traveling is a subject of Fourth Amendment protection. But what he reveals to the world, such as his movements in a car on a public roadway, is not.”

In Knotts v. United States, the court ruled that visual and beeper surveillance of a vehicle traveling on the public roadways infringed no Fourth Amendment expectation of privacy, Dreeben said.

Chief Justice John G. Roberts argued that both cases were too dated to be held parallel to Jones’ case.

“That was 30 years ago,” Roberts said. “The technology is very different and you get a lot more information from the GPS surveillance than you do from following a beeper ... That’s a lot of work to follow the car. They’ve got to listen to the beeper; when they lose it they have got to call in the helicopter. Here they just sit back in the station and ... push a button whenever they want to find out where the car is. They look at data from a month and find out everywhere it’s been in the past month. That seems to be dramatically different.”

Justice Ruth Bader Ginsburg summarized Dreeben’s argument by saying he was suggesting that someone’s residence is the only “private” place.

“... that is the end point of your argument, that an electronic device, as long as it’s not used inside the house, is OK,” she said.

Justice Stephen Breyer voiced his concerns about the possibilities which could be created by Jones’ conviction.

“... if you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States,” Breyer said.

Dreeben did not agree.

“This case does not involve universal surveillance of every member of this court or every member of the society,” he said. “It involves limited surveillance of somebody who was suspected of drug activity... This court has said that trespass is neither necessary nor sufficient to create a Fourth Amendment violation.”

Stephen C. Leckar, Jones’ attorney, claimed Jones’ person data was seized during the police’s investigation.

“Data is seized that is created by the GPS. Antoine Jones has the right, Your Honor, to control the use of his vehicle. And what the government did was ... deprive him of the use of that ... society does not view as reasonable the concept that the United States government has the right to take a device that enables them to engage in pervasive, limitless, cost-free surveillance, that completely replaces the human equation,” Leckar said.

Madison County Commonwealth’s Attorney David Smith of Richmond said he is glad to hear the Supreme Court is going to be taking up the issue.

“I think both sides have very good arguments,” he said. “I think law enforcement has every right to observe where you go (in public), but I don’t think people expect their movements to be monitored 24 hours a day, seven days a week. You don’t want to unnecessarily hamper law enforcement, but I don’t think people are comfortable with a Big Brother concept where someone can monitor you 24 hours a day.”

A 2009 Richmond Register investigation discovered that several local law enforcement agencies had possession of and/or were using GPS devices in local criminal investigations without obtaining warrants.

The Central Kentucky Area Drug Task Force, a joint agency comprised of officers from the Madison, Clark, Garrard and Jackson sheriff’s offices and the Berea Police Department, spent nearly $18,000 several years ago to purchase a variety of systems designed to allow officers to track the movement of vehicles covertly using GPS satellites.

Former task force director Rick Johnson confirmed in a 2009 interview that his agency owns three of the devices, and has used them, but declined to give any specific details beyond stating that they were installed without obtaining warrants.

He maintained that it was legal for the trackers to be placed on vehicles parked on public property.

Richmond Police Chief Larry Brock confirmed his department owned more than one of the devices, but said they were purchased “long before” he became chief in July 2007.

“We do have and utilize tracking devices in certain, very specific, cases,” Brock said in 2009. “They may be deployed in such cases where it has been established through credible information that the target is involved in criminal activity. They are not used routinely and are never utilized against law-abiding citizens in any form or fashion.”

Ronica Shannon can be reached at rshannon@ or 624-6608.

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