You are here! Mapping the boundaries of the Fourth Amendment with GPS technology.

• Author: Dowdell, Eva Marie

"It must be remembered that the Bill of Rights, of which the Fourth Amendment ... [is] a part, was incorporated in the Constitution in an effort to give the courts of this country the authority ... to oblige the government to control itself." (1)

1. INTRODUCTION

   Picture this: A couple is driving to an event in an unfamiliar location, obviously lost. Rather than quarrelling about one partner's refusal to stop and ask for directions, they simply press a button, the correct routing is obtained, and they are once again on their way. Conflict avoided courtesy of a Global Positioning System (GPS). (2)

   GPS is now available in many cars. (3) The GPS system consists of a constellation of satellites, which transmit radio waves that are "heard" by receivers installed on or in vehicles. (4) With GPS, drivers can obtain real time directions (5) or summon roadside assistance. (6) Some systems can remotely unlock car doors when keys are lost, (7) or disable a car when it is stolen. (8)

   The advantages of GPS are clear, but what is the price of such convenience? The same satellite technology that provides driving directions or that can otherwise help in an emergency also allows the tracking and monitoring of a car's movements in real time. (9) With GPS, someone at a linked computer with Internet access can determine a car's location, (10) its speed, direction, (11) and travel history. (12) The breadth and precision of such information is not unlike having an "invisible" passenger riding along in the car, watching its every move. (13)

   Not surprisingly, as consumers have realized the benefits of GPS, so too has law enforcement. (14) The technology is applied in auto theft sting operations, (15) to monitor the whereabouts of parolees, (16) and also in the remote tailing of suspects from desktop or laptop computers, (17) often without warrants. (18) Since the GPS devices used by law enforcement do not actually record conversations, they fall outside the scope of laws regulating wiretaps and similar forms of electronic surveillance. (19)

   Courts have frequently permitted the warrantless installation and monitoring of similar devices, such as "beepers," (20) in criminal investigations, without finding Fourth Amendment consequences. (21) Virtually the only restrictions placed on such use were if the devices somehow revealed information about activities taking place in a home, which were not readily observable by visual surveillance methods. (22)

   GPS, however, is a far more exacting and pervasive technology, (23) which, unlike beepers, does not require, continuous monitoring or tailing by law enforcement. (24) As the use of GPS by law enforcement has grown in recent years, so too have the challenges raised by defendants, who allege that the warrantless use of GPS devices is repugnant to the Fourth Amendment. (25)

   Court decisions in GPS cases thus far are mixed. In January 2005, in United States v. Moran, (26) a federal district court judge quickly disposed of a GPS case by invoking the automobile exception to the search warrant requirement. (27) The court announced that, "Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway." (28) Thus, the use of the GPS device did not amount to a search for Fourth Amendment purposes. (29) The judge reviewed flaws in the authorities cited by the defense, but did not spend much time discussing the merits of the defendant's Constitutional claim. (30)

   Conversely, in People v. Lacey, (31) a Nassau County, New York court, in a case of first impression, decided that a warrant was required before GPS could be used. (32) The Lacey court noted, "[o]ther than in the most exigent circumstances, a person must feel secure that his or her every movement will not be tracked except with a warrant based on probable cause." (33) Other courts have similarly recognized that the use of GPS devices requires a warrant given how much private information the technology can yield. (34)

   Additional GPS challenges will follow, especially as the technology becomes more affordable and widely used by smaller police departments and the public alike. (35) State and federal courts will be increasingly called upon to strike the proper balance between legitimate law enforcement objectives and the maintenance of constitutional guarantees in light of technological advances.

   The disagreements among the lower courts thus far suggest that the Supreme Court will likely be asked to decide a GPS case. Although the Court has generally held that the use of beepers for surveillance purposes does not amount to a search or a seizure, (36) it has also suggested that more pervasive technologies would trigger heightened scrutiny. (37)

   The Court will be called upon to reconcile decades of electronic surveillance jurisprudence with a newer, more far-reaching technology that does not quite fit earlier molds. Further, this decision will be made in the context of a post September 11th world, where notions of "reasonable expectations of privacy" have changed. For example, while we may routinely open our purses and briefcases just to get into a ballpark, and (perhaps) willingly take off our shoes at the airport, the notion that someone can "watch" where we are driving, and how fast we are going, conjures up Orwellian images. (38) The Court has, in the past, signaled that such curtailments to freedoms in the name of law enforcement may not be limitless. (39) Clearly, the outcome of such a case is hard to anticipate.

   This note argues that technological advancements ought not to erode fundamental rights. It maintains that GPS is so invasive a technology that its use does implicate the Fourth Amendment. Thus, consistent with the intent of the Framers, decisions regarding the use of GPS by law enforcement must not be left to the discretion of individual officers, but rather to a neutral magistrate, absent overriding circumstances. To understand how GPS merits different treatment by the courts, Part II of this note discusses the technological disparities between GPS and older electronic tracking devices. Part III presents an overview of the analytical frameworks used by courts to decide both beeper and GPS cases. Part IV first reviews the Court's treatment of earlier high-technology surveillance cases. It then presents arguments for and against the warrantless use of high-tech surveillance devices. Finally, it suggests that given the uniqueness of the technology, a future GPS decision will require the Court to adapt to the challenges presented, rather than attempt to retrofit the implications of this new technology into age-old legal standards. Such adjustments are necessary in order to ensure Fourth Amendment rights.

2. BEEPERS AND SATELLITES: TECHNOLOGY EXPLAINED

   "What the ancients knew as 'eavesdropping,' we now call 'electronic surveillance;' but to equate the two is to treat man's first gunpowder on the same level as the nuclear bomb. Electronic surveillance is the greatest leveler of human privacy ever known." (40)

   1. The Early Days of Tracking Technology

      Before considering how courts have analyzed electronic surveillance cases, or may decide them in the future, it is helpful to review the technology behind electronic tracking devices, new and old.

      Prior to the arrival of GPS, law enforcement used other electronic devices to assist with visual surveillance. (41) These "beepers" or "beacons" were small, battery-operated devices that were usually attached to the bumpers of suspect vehicles with magnets (42) or inserted into objects carried in these vehicles. (43) The devices transmitted radio waves that were picked up by receivers set to the same frequency. (44) While some beepers emitted constant signals, others only "respond[ed]" when signals were sent from radar stations. (45) Generally, beepers provided only rough estimates of a car's location, based on the strength of the signals received. (46)

      Beepers were often used in concert with other visual surveillance methods. (47) These devices made it harder for suspects to detect a police presence, (48) and modestly expanded the coverage area of the surveillance. (49) Conversely, beepers were problematic because batteries wore out and required replacement, creating the need for more than one "installation." (50) Signals were of somewhat limited range, (51) and were often lost in dense areas. (52) Intermittent signals sometimes called for a more intrusive follow-up, such as helicopters or airplanes, which compromised covert surveillance. (53)

   2. Space Age Surveillance

      GPS has greater investigative reach than its tracking ancestors. Consisting of approximately twenty-five satellites, (54) the system was created in the 1970s by the United States Department of Defense to guide missiles (55) and track troop movements. (56) GPS works via satellites that transmit radio signals to Earth, where receivers read the navigation indicators to determine, with great precision, the location, direction, and speed of the vehicle. (57) For example, the system clock is accurate to within 340 nanoseconds, (58) and its proximity is off by no more than 20 yards. (59) When combined with cellular technology, a GPS navigation system provides live operator assistance via communication devices installed in the passenger compartment of cars. (60)

      Unlike beepers, GPS offers far more consistent and accurate information, (61) and can cover greater distances. (62) Notably, GPS allows a suspect's movements to be tracked twenty-four hours per day, without an officer ever leaving the police station. (63)

      GPS is also a high-tech alternative to physical surveillance or "tailing" a suspect. (64) Tailing demands far more resources, sometimes more than one follower per subject person or vehicle. (65) It is also more risky: if a suspect detects a police presence, he can alter his behavior and perhaps turn against his pursuers. (66) While these arguments for using GPS rather than the low-tech alternatives...