GPS tracking case has left unsettled questions

Published on NewsOK Modified: June 16, 2014 at 4:43 pm •  Published: June 16, 2014
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WASHINGTON (AP) — Judges around the country are grappling with the ripple effects of a 2-year-old Supreme Court ruling on GPS tracking, reaching conflicting conclusions on the case's broader meaning and tackling unresolved questions that flare in a world where privacy and technology increasingly collide.

The January 2012 opinion in United States v. Jones set constitutional boundaries for law enforcement's use of GPS devices to track the whereabouts of criminal suspects. But the different legal rationales offered by the justices have left a muddled legal landscape for police and lower-court judges, who have struggled in the last two years with how and when to apply the decision — especially at a time when new technologies are developed at a faster rate than judicial opinions are issued.

The result is that courts in different jurisdictions have reached different conclusions on similar issues, providing little uniformity for law enforcement and judges on core constitutional questions. Technological advancements are forcing the issue more and more, a development magnified by a heightened national debate over privacy versus surveillance and the disclosure of the National Security Agency's bulk collection of Americans' telephone records.

"Courts are all over the place on all of these issues," said Hanni Fakhoury, an attorney with the Electronic Frontier Foundation, a privacy group.

Among the questions being confronted: Should GPS evidence gathered before the 2012 decision be admissible in court? What are the rights of a passenger in a car being tracked by GPS? And how might the ruling affect other types of technology, such as pole-camera surveillance and "Stingray" devices that capture cellphone data?

That ambiguity was on display just last week, when an Atlanta-based federal appeals court ruled in the case of a man imprisoned for armed robberies that investigators need a warrant to get cellphone tower tracking data, evidence authorities use to place suspects in the vicinity of a crime. Yet an appeals court in New Orleans last year authorized warrantless cell site tracking in a case that presented similar legal issues. A related federal case in Michigan is now on appeal, too.

The questions form a broader debate about how police should confront "circumstances of legal ambiguity," said former federal prosecutor Caleb Mason, who has written on the Jones case.

"Do we want them pushing the envelope as long as no legal authority, no appellate court, has expressly told them no?" he asked.

Against the backdrop of a high-tech world, the justices deciding the Jones case grappled with fundamental principles of privacy and trespass that have been drawn on repeatedly in similar surveillance disputes.

The court held that police erred when, without a valid warrant, they attached a GPS tracking device to the Jeep of a Washington, D.C., nightclub owner. The surveillance continued for a month, leading authorities to a stash house for drugs and helping secure an indictment against the suspect, Antoine Jones.

The justices unanimously agreed that using the device constituted a search under the Fourth Amendment, which bars unreasonable searches and seizures. But they stopped short of saying a warrant is always required — an important point since not all searches require warrants — and produced three separate opinions offering different legal explanations for their views. Several justices mused at the time that the issues probably would resurface.

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