GPS tracking, police intrusion, and the diverging paths of state and federal judiciaries.

AuthorSuslak, Brian Andrew
PositionGlobal positioning system

"The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping. Ways may some day be developed by which the government, without removing papers from secret drawers, can reproduce them in court, and by which it will be enabled to expose to a jury the most intimate occurrences of the home.... Can it be that the Constitution affords no protection against such invasions of individual security?" (1)

  1. Introduction

    Approximately eighty-two years after Justice Brandeis's dissent in Olmstead v. United States, (2) the United States Court of Appeals for the Ninth Circuit held that the warrantless placement of a global positioning system (GPS) on a criminal suspect's vehicle did not violate the Fourth Amendment's prohibition of unreasonable searches and seizures. (3) The court, relying on precedent established by the United States Supreme Court, concluded that Drug Enforcement Agency (DEA) officials did not invade any area in which the appellant possessed a reasonable expectation of privacy. (4) Furthermore, the court upheld the constitutionality of the GPS technology used by the DEA to track the appellant's movements to and from suspected marijuana "grow houses." (5)

    The Ninth Circuit's holding in United States v. Pineda-Moreno (6) does not constitute an outlier, but rather the latest in a growing body of federal jurisprudence in which courts have permitted advances in technology to restrict the privacy rights of citizens. (7) When faced with privacy issues stemming from advances in technology over the last decade, federal courts have continued to rely upon precedent established twenty-seven years ago, rather than issuing decisions that recognize the implications created by new technology. (8) Even as technology evolves to become more pervasive, courts continue to rely on an outdated application of the Fourth Amendment, thereby jeopardizing citizens' privacy rights. (9)

    While federal courts continue to narrowly interpret the Fourth Amendment, many states have endeavored to provide more expansive rights to their citizens under their respective constitutions. (10) In recent decades, several states have diverged from the federal courts' narrow interpretation of the Fourth Amendment--especially as it relates to police tracking--instead, opting for a more expansive protection of privacy rights under their state constitutions. (11) This disparity between rights protected by state constitutions and those protected by the United States Constitution likely will continue to grow with advances in technology. (12)

    This Note will first describe the evolution of GPS technology over the last twenty years. (13) Next, it will discuss the Supreme Court's jurisprudence regarding the constitutionality of searches using technology that led to the Ninth Circuit's decision in Pineda-Moreno, and the ways in which advances in technology have continued to erode citizens' expectations of privacy. (14) Next, this Note will briefly discuss the conflicting holdings of the circuit courts regarding the constitutionality of warrantless GPS tracking. (15) Finally, this Note will discuss the constitutions of Massachusetts, New York, and Washington, and the increased protection provided to the citizens of these states under their constitutions regarding the use of GPS technology. (16)

    The analysis section of this Note will first consider the repercussions of erosion in privacy, as demonstrated by ever-increasing police and government intrusions into the private lives of citizens. (17) Next, it will consider why state courts have interpreted their state constitutions to provide greater protection. (18) Finally, it will argue that this conflict between state and federal governments furthers the democratic ideals of the United States because it allows the states to maintain their roles as the "laboratories" of democracy and experiment with the rights and privileges they wish to afford to their citizens. (19)

  2. HISTORY

    1. The Evolution of GPS Technology

      Over the previous ten years, the use of GPS technology has increasingly pervaded nearly every aspect of daily life. (20) Two decades ago, when the Supreme Court first addressed the privacy issues of "beepers," the devices did little more than assist police officers involved in the active pursuit of a criminal suspect. (21) Compared to the relative simplicity of beeper technology, which was only able to "ping" the location of a suspect's vehicle or an article of contraband, GPS technology enables law enforcement officials to track every move of a criminal suspect with tremendous ease. (22) For example, instead of having to actively pursue the "pings" of a beeper, law enforcement officials today can simply run a search on their laptop to gather the precise location of a particular criminal suspect. (23) Despite the increasing pervasiveness of GPS technology, and the ease with which law enforcement officials may track a suspect's movements, the privacy questions surrounding this technology remain largely unanswered by the United States Supreme Court. (24)

    2. The Supreme Court, Technology, and Privacy

      In 1928, the United States Supreme Court first addressed the issues concerning technology and privacy with its holding in Olmstead v. United States. (25) In Olmstead, the Court considered whether the admission of private telephone conversations between the petitioners and others, intercepted by wiretapping, violated the Fourth and Fifth Amendments. (26) In order to gather evidence of an alcohol-smuggling conspiracy, federal officials inserted small wires into the telephones of the petitioners and, for several months, accumulated information regarding the operation. (27) After accumulating the necessary evidence, the Government charged the petitioners with violating the National Prohibition Act. (28)

      Writing for the Court, Justice Taft held that "the wire tapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment." (29) In reaching this holding, the Court reasoned that telegraph and telephone messages did not deserve the same protection afforded to mailed, sealed letters. (30) Rejecting petitioners' constitutional and exclusionary arguments, the Court affirmed the convictions and discarded the argument that the government's actions constituted an unconstitutional invasion of privacy. (31)

      While the majority rejected petitioners' argument in favor of increased privacy rights, Justice Brandeis's dissent ultimately shaped the course of Supreme Court privacy jurisprudence in the following decades. (32) Brandeis rejected the Court's distinction between telephone conversations and sealed letters, reasoning that intercepting one's private phone conversations constituted a greater invasion of privacy than interference with one's mail. (33) While the Court failed to endorse his stance when rendering the Olmstead decision in 1928, thirty-nine years later, in Katz v. United States, (34) the Court adopted Justice Brandeis's position. (35)

      Reminiscent of the issues in Olmstead, the Court in Katz encountered advances in technology and its impact on privacy expectations. (36) In Katz, a jury convicted the petitioner, a participant in a nationwide, illegal gambling operation, of transmitting wagering information via telephone, in violation of a federal statute. (37) At issue before the Court was the way the government obtained its evidence: the wiretapping and recording of the public telephone booth used by the petitioner in the gambling operation. (38) While the petitioner argued that his Fourth Amendment rights were violated, the Government countered by arguing that a public telephone booth did not constitute a "constitutionally protected area." (39)

      The Court ultimately reversed the petitioner's convictions. (40) Overruling its holding in Olmstead, the Court reasoned that "[w]herever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures," regardless of the tangibility of the property searched or seized. (41) While Justice Stewart wrote for the majority of the Court, the Katz decision is best remembered for Justice Harlan's concurring opinion, in which Harlan proposed a two-part test to determine the reasonableness of an individual's expectations of privacy. (42)

      Under the first prong of Justice Harlan's test, an individual must exhibit an actual, subjective expectation of privacy. (43) Second, the expectation of privacy exhibited by the individual must be one that "society is prepared to recognize as 'reasonable.'" (44) Utilizing his two-part test, Justice Harlan reasoned that when a man enters a telephone booth and places a call, it is reasonable to assume that those outside the booth are not intercepting his conversation. (45) While Justice Harlan's concurrence did not control at the time he wrote it, the Court subsequently adopted the two-prong expectation of privacy test in Smith v. Maryland. (46)

      Roughly two decades after its decision in Katz, the Supreme Court addressed the constitutionality of the use of beepers to track and monitor criminal suspects. (47) In United States v. Knotts, (48) the Court carefully defined the limits of the use of beepers to track criminal suspects. (49) While the Court upheld the use of a beeper to track the suspect's vehicle, it did so with reservations, and it warned law enforcement officials that intrusions into other areas likely violated the constitution. (50) Intrusion into the home, the most sacred of "constitutionally protected areas," gave the Court great pause and reflected a scenario in which the Court restricted the power of government officials to monitor suspects' activities. (51)

      Recognizing the implications of its dated privacy jurisprudence, in 2001, the Court in Kyllo v. United States (52) strove to address the concerns raised by the Court in Knotts. (53) In Kyllo, federal agents utilized an "Agema Thermovision 210"...

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