Court case asks if GPS is an eye of 'Big Brother'

By Adam Liptak

New York Times News Service

Published: Sunday, Sept. 11 2011 11:52 p.m. MDT

WASHINGTON — In a series of rulings on the use of satellites and cellphones to track criminal suspects, judges around the country have been citing George Orwell's "1984" to sound an alarm. They say the Fourth Amendment's promise of protection from government invasion of privacy is in danger of being replaced by the futuristic surveillance state Orwell described.

In November, the Supreme Court will hear arguments in United States v. Jones, No. 10-1259, the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect's car and track its movements for weeks at a time? Their answer will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of "unreasonable searches and seizures" applies to a world in which people's movements are continuously and comprehensively recorded by devices in their cars, pockets and purses.

The Jones case will address not only whether the placement of a space-age tracking device on the outside of a vehicle without a warrant qualifies as a search, but also whether the intensive monitoring it allows is different in kind from conventional surveillance by police officers who stake out suspects and tail their cars.

The case arose from the investigation of the owner of a Washington nightclub, Antoine Jones, who was suspected of being part of a cocaine-selling operation. Apparently out of caution given the unsettled state of the law, prosecutors obtained a warrant allowing the police to place a tracking device on Jones' Jeep Grand Cherokee. The warrant required them to do so within 10 days and within the District of Columbia. The police did not install the device until 11 days later, and they did it in Maryland. Now contending that no warrant was required, the authorities tracked Jones' travels for a month and used the evidence they gathered to convict him of conspiring to sell cocaine. He was sentenced to life in prison.

A decade ago, the Supreme Court ruled that the police needed a warrant to use thermal imaging technology to measure heat emanating from a home. The sanctity of the home is at the core of what the Fourth Amendment protects, Justice Antonin Scalia explained, and the technology was not in widespread use.

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