A warrant is required to conduct surveillance on an individual under the Fourth Amendment. This valid warrant protects a person from “unlawful search and seizure.”

But how law enforcement increasingly monitors individuals using GPS tracking devices and other forms of technology is coming under scrutinty. The U.S. Supreme Court will hear a case in October that could determine our future in how investigators can conduct surveillance using technology, specifically GPS tracking.

When are electronic or other forms of surveillance of an individual considered a search under the Fourth Amendment? Defense attorneys and privacy rights advocates are closely following this case during the fall term.

The Court could determine that search warrants are not required for electronic or other forms of surveillance. Arkansas-based attorney John Wesley Hall is concerns that this type of ruling could hail “the technological death of the Fourth Amendment.”

The Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

The Supreme Court will be reviewing a 2004 case in which a suspected drug trafficker, Antoine Jones, was closely monitored by FBI agents and officers of the Washington, D.C. Metropolitan Police Department, using various forms of electronic and technological tracking.

Investigators not only used traditional surveillance methods but also placed a fixed camera on a corner near a club that Jones owned at the time, wired his cell phone, using an interceptor and pen register, an electronic device that records outgoing phone numbers, and GPS tracking. The GPS device was installed in Jones’ wife’s Jeep Cherokee.

Specifically how they used the GPS tracking device is the main focus of the case before the Court. Investigators did obtain a warrant covering a 10-day tracking period inside the District of Columbia. The issue stems from the fact that officers installed the device after the 10-day window had expired and where they performed the installation. The GPS installation occurred in a public parking lot in Maryland.

The GPS data provided around the clock surveillance of Jones’ movements over the next month and was significant in tying him to a large amount of drugs, concealed in a house in Maryland.

In October 2005, agents executed search warrants for several locations, including the Jeep and the Maryland stash house. Officers recovered large amounts of cash, and large quantities of powder and crack cocaine. Jones was eventually convicted on a charge of conspiring to sell drugs and was sentenced to life in prison.

Jones appealed his conviction, arguing that the prolonged GPS surveillance, without a valid warrant, constituted an illegal search.

In 2010, the D.C. Circuit Court of Appeals ruled in Jones’ favor saying that he had a “reasonable expectation” of privacy because all of his movements over a prolonged period were not actually “exposed” to the public.

The U.S. Supreme Court had previously ruled in 1967, in Katz v. U.S., that what a person “knowingly exposes to the public” is not subject to Fourth Amendment protection.
But the GPS 24/7 tracking an individual’s movements contrasts starkly with that exception.

The D.C. court ruled that the type of satellite-guided surveillance used in the Jones case — and available only because of advancements in technology over the last decade — is different from previous cases decided by the courts, including the Supreme Court.

The earlier Court decision declared that individuals had a decreased expectation of privacy in their discrete travels on public roads, and that law enforcement agencies therefore do not need a warrant in order to augment their ability to physically track those discrete movements.

I’ll be following up with the Court’s ruling in October during the fall term. It will be interesting to see how the Court proceeds.