Supreme Court requires warrant for GPS tracking… sort of… not really

January 23rd, 2012
In the case of US v. Jones the Supreme Court ruled unanimously that law enforcement required a warrant to install a GPS tracking device on nightclub owner Antoine Jones’ car. In doing so they tossed out his drug conspiracy conviction and life sentence. But before we celebrate we have to ask, why does all the coverage of the story read like, “law enforcement might need a probable-cause warrant” and “law enforcement in most instances must get a search warrant.” Well, because that’s the language used by the Supreme Court Justices in what’s being called the most important Fourth Amendment case in the computer era.

Although all nine Supreme Court Justices agreed to overturn the charges in this case, they disagreed five to four as to why. Justice Alito wrote that police, to avoid legal ambiguity, “may always seek a warrant,” but did not actually resolve that ambiguity because the Justices never actually said that a warrant was necessary in all cases. Here’s how it breaks down.

 

The majority opinion (held by Justices Roberts, Kennedy, Thomas, Sotomayor and Scalia), was that placing the device on the suspect’s car amounted to a “search” because according to Scalia, “the government physically occupied private property for the purpose of obtaining information.” That sounds like a victory right? Well, not really. Because what they didn’t specify was whether or not it constituted a “reasonable” or “unreasonable” search according to the Fourth Amendment. In Scalia’s majority opinion he wrote that they would not decide whether or not a warrant was always required because of “procedural rules.” So, they left the door open for law enforcement to claim that with “reasonable suspicion” a warrant might not be required. Walter Dellinger, the defense attorney of Antoine Jones, said the decision was at best, “legally questionable.”

The minority opinion (held by Justices Breyer, Alito, Kagan and Ginsburg) came to the same conclusion on the Jones case, but a different conclusion on the Fourth Amendment. They argued that the warrant was required for prolonged surveillance, 28 days in this case, but was silent on whether it was required for GPS monitoring for shorter periods of time. What this means is that the Court completely failed to settle the conflicting decisions from lower-courts, which was of course the whole point.

Of course, ultimately it doesn’t matter in the slightest. Liberty has lost and I’ll tell you why. During the coverage of the case analysts made reference to a decade old Supreme Court ruling that authorities needed a warrant to employ thermal-imaging devices to detect indoor marijuana growing operations. That reminded me of the story we covered just a few weeks ago where a Predator Drone equipped with thermal-imaging was literally used to recover stolen cows in a little town in North Dakota. And Drones don’t need to be physically affixed to private property, as the majority position in this case specifies. See, it doesn’t matter what ruling the Supreme Court makes on specific technological devices because by the time it gets to the Supreme Court the technology is obsolete anyway. The GPS tracking devices are already obsolete. They are using Predator Drones over US Cities. Just like it didn’t matter that the Supreme Court ruled out thermal-imaging devices a decade ago, it doesn’t matter whether or not they rule out GPS devices now. We live in an age when law enforcement readily asks forgiveness rather then permission to intrude on our privacy, and they’ll do it in secret if they have to.

And don’t forget to visit our official website to learn more about the Silver Circle Movie: http://SilverCircleMovie.com


About the Author: Davi Barker

In grade school Davi refused to recite the pledge of allegiance because he didn't understand what it meant. He was ordered to do as he was told. In college he spent hours scouring through the congressional record trying to understand this strange machine. That's where he discovered Dr. Ron Paul. In 2007 he joined the End The Fed movement and found a political home with the libertarians. The Declaration of Independence claims that the government derives its power “from the consent of the governed." He does not consent.

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