Can the police attach a GPS device to my car to track my whereabouts?
No, unless they have first obtained a warrant. This question was recently settled by the U.S. Supreme Court in United States v. Jones (No. 10–1259, 2012). In that case, police at first obtained a warrant that allowed them to place a GPS tracking device on the underside of a suspect’s car, but the warrant had expired. They left the device in place for weeks, and it gave them information that ultimately led to the discovery of incriminating evidence of drug trafficking. The defendant was convicted, but appealed on the grounds that but for the illegal search, the prosecution would not have discovered the evidence.
A majority of the court ruled that the act of affixing a device to a car constitutes a search, for which a warrant must be obtained unless one of the few exceptions to the warrant requirement applied. No such exception applied here: There was no emergency or risk that evidence was about to be destroyed. Interestingly, four members of the court wrote a separate concurring opinion in which they argued that the real issue was not the physical placement of the device on the car, but whether the use of such technology, for such a long period, constituted a search.
This is a broader question, involving the question of whether such long term monitoring violates a motorist’s reasonable expectation of privacy. Had the full court approached the issue from this angle, they might have given us some idea as to how they would rule on other ways that technology can be used to gather information. For example, even in the absence of a physical intrusion onto a defendant’s car, home, or other property, can the government remotely track an individual’s wherabouts by monitoring cell phone records, which have the ability to pinpoint an owner’s location—without the use of a warrant? Put another way, do people have a reasonable expectation of privacy as to their location—even when the location is in public? If so, the police need a warrant before taking action.
The Jones case apparently had quite an impact. According to FBI General Counsel Andrew Weissmann, the agency was forced to turn off about 3,000 devices that had been placed without warrants. (“FBI Turns Off Thousands of GPS Devices After Supreme Court Ruling,” Wall Street Journal February 25, 2012.) As for Mr. Jones, prosecutors plan to prosecute him again—maybe with the help of cell phone data.
by: Janet Portman, Attorney