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Unreasonable Track & Seizure?

Posted by Rick · September 18th, 2003 · 2 Comments

Barton Aronson writes on Findlaw.com that the Supreme Court of Washington recently got it wrong when they held that a warrant was required to track someone using GPS technology.

This blog entry shines a little light on Aronson’s dark answer to the question…


As Aronson noted in his summary of the facts, the suspect’s truck had been legally seized by the police who were investigating the disappearance of his daughter; the suspect was…well, a suspect. When the vehicle was returned, unbeknownst to the suspect, it had been upgraded to include GPS technology which would allow the police to track him.

Aronson begins by trotting out the old tired comment that “there is no right to privacy in the U.S. Constitution.” Like so many others, he does not argue this point nor mention the Tenth Amendment of the Bill of Rights, which states

The powers not delegated to the United States by the Constitution, nor prohibited by it to the states, are reserved to the states respectively, or to the people. Bill of Rights, 10th Amendment.

If it is true that the words “right to privacy” do not appear in the Constitution, it is equally true that all the ways in which privacy rights may be abrogated will not be found there, either. This argument that “there is no right to privacy in the Constitution” cuts both ways. And given the reasons behind the Revolution and the subsequent writings regarding limitations to be placed on government including, but not limited to, the Bill of Rights, it cuts deeper against the government’s right to erase privacy rights with the mere flick of a judicial wrist. You’ll never hear this from those who argue “there is no right to privacy in the Constitution,” however. If they don’t continue the mantra that there is no such right, people might start to believe the Constitution and the Bill of Rights were limiting documents. And we couldn’t have that.

(Various Supreme Court Justices at least since the time of Brandeis in 1910, if not before, have argued a constitutional right does exist, however, in considering the question of privacy expectations of citizens. The Supreme Court itself has repeatedly seen a constitutional right to privacy. This was most clearly explicated in Griswold [381 U.S. 479], where it rested upon First, Ninth and Tenth Amendment grounds. More recently, in Lawrence v. Texas [123 S. Ct. 2472; decided June 2003], the court reaffirmed its recognition of the constitutional right to privacy, noting at p. 2475: “Freedom extends beyond spatial bounds,” i.e., we have rights to privacy not limited by where we are; the case, further, adds to the historical mix of amendments supporting a privacy right the Fourteenth, specifically the Due Process clause.)

Aronson himself does focus some attention on the enumerated powers outlined in the Sixth Amendment; he quickly determines that it was “reasonable” for the police to plant a GPS unit on a suspect’s car. He notes that

Most people are vaguely aware of GPS technology, but it’s probably fair to say Jackson, like almost all of the rest of us, has not pondered its uses in monitoring the movements of crime suspects.

He then attempts to dismiss the critically-important characterization of the inchoateness of this ordinary understanding by pointing out that

Search and seizure law has always accounted for technological innovations. If you “hide” your drug paraphernalia by putting it on your front door step at night, you could, conceivably, tell the judge that you reasonably expected privacy because, after all, it was dark and no one could see it. But if the police walk by and shine a flashlight on your stuff, the judge is likely to find they conducted no “search” at all.

But there’s a glaring problem with this: Flashlights are commonplace and frequently used to discover things made “invisible” by darkness. And the ability to create light after sundown is even more common. It would be difficult, indeed, to beam forth an argument that one had a reasonable expectation of privacy by “hiding” something in a public place using only a cover of darkness.

Such is not the case with GPS. It’s probably fair to say that there are more people in the United States who don’t have access to flashlights than there are people who do have access to GPS technology. It’s just not (yet) commonplace. Whereas only a fool could reasonably believe hiding drug paraphernalia on a darkened front door step would make it immune to discovery, it would take an exceptional person—not extremely exceptional perhaps, but nevertheless exceptional—to easily cognize a high probability they were being secretly tracked via GPS technology. The day may come when GPS technology is a commonplace—people are beginning to see such technology in everything from implants to find lost pets to implants to protect against child kidnapping to, yes, even new cars that provide maps and driving directions to drivers. But the realization of GPS technology as a “commonplace” or ubiquitous technology which might readily jump to the mind of that favorite of legal-fiction characters—the reasonable person—is not yet here.

Even when that day arrives, the question of utilizing GPS without a warrant remains to be answered.

A second argument Aronson makes is that everything the suspect did in this case was “public” and he therefore had no reasonable expectation of privacy. He notes that

there is no question, none at all, that the police can follow your movements in public. They can do so, moreover, while trying to conceal their identity, by driving in unmarked cars, not following too closely, and regularly switching vehicles. And they can certainly do it for a couple of weeks before you’d have any legal right to complain.

Aronson correctly points out that “[i]f the sheriff’s office had tracked William Jackson this way, his appeal would have merited a single paragraph from the courts of appeals rather than two lengthy opinions.” Yet the very problem here is that while the police could have done this, they did not! And, for that reason, the appeal merited more than a single paragraph.

Aronson’s argument seems to be this: “The police could have followed the suspect to obtain proof of his guilt. And placing a bug on him is ‘sort of’ like following him. It just makes it easier in cases where the suspect is unwilling to cooperate.” Another version of this argument might go like this: “The police could have proven their case against the suspect. And forcing a confession out of him is ‘sort of’ like proving the case. It just makes it easier in cases where the suspect is unwilling to cooperate.”

Where the police could have followed the suspect, they should have followed the suspect. This is, as Aronson noted, a time-honored method, accepted by the courts, for obtaining evidence. (Even here, however, it’s important to note that sometimes the law still requires a warrant, at least to retrieve evidence that might not be lying right out in the open.)

Jackson killed his daughter. That makes it easy for us to endorse what the police did in this instance. After all, he was guilty. But it’s important to remember that laws like those embodied or devolving from the Constitution and the Bill of Rights were written to protect all citizens against the intrusions of government. There was no codicil stating, “All the foregoing limitations are to apply unless the government thinks the suspect is really guilty.” There was no amendment indicating the law only applied in the absence of criminal suspicion. On the contrary, virtually all of these limitations concern themselves with the ways in which the government may pursue citizens suspected of wrongdoing.

If the only thing that mattered is that we actually got the bad guys, then when the government is uncertain who did what, they could just detain groups of people until they somehow found the right one. If all that mattered is that the guy actually was a criminal, we could just turn the police loose without any constitutional safeguards and then, if it turned out later that someone was wrongfully convicted, we could give them a little money and send them on their way. But that’s not what’s central to our criminal justice system. There is a saying that “It is better that 10 guilty people go free than that one innocent person is convicted.” (See, e.g., 4 William Blackstone, Commentaries ch. 27, at p. 358; United States v. Calandra, 414 U.S. 338 at p. 361; Bunnell v. Sullivan, 947 F.2d 341 at p. 352.) Or, as the Supreme Court of the United States notes, it is “the ultimate objective that the guilty be convicted and the innocent go free.” (Bell v. Cone, 535 U.S. 685 at p. 716.)

Sometimes this makes it a little tougher on law enforcement officers, prosecutors and the courts. But if we do otherwise, it will take more than a flashlight to find our way out of the darkness.

Categories: Law and Legal Issues · The Man Who Would Be President

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2 responses so far ↓

  • 1 joe // Sep 19, 2003 at 2:44 pm

    Sorry, I have to post this somewhere since this has not been an open topic on your blog yet.

    Regarding the recall election and the challenges to the legality of this election:

    http://www.sfgate.com/cgi-bin/article.cgi?f=/news/archive/2003/09/19/state1413EDT0071.DTL

    Short version, Monday is a big day in California history. The ‘en banc’ proceeding will surely open old wounds (Bush / Gore 2000 in Florida) and most probably end up in the Supreme Court.

    Anyone care to voice opinions? Make predictions?

    Eleven judges (seven of which were appointed by Bill Clinton) will voice an opinion next week.

  • 2 Rick // Sep 19, 2003 at 4:12 pm

    Hmmm…we might need to give you your own blog. 😉

    Since I have a full-time job, I can’t always post as often as I’d like. And last night was spent with reading the 66-page opinion from the 9th Circuit regarding this case. I’m hoping to write something about it tonight.

    Stay tuned.

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