This argument goes against the Supreme Court ruling in the Jones case back in January which we have reported on extensively here at RMT, and asks the court to reconsider their decision. The ruling makes the practice of placing a tracking device without obtaining a warrant illegal, as it violates an individual’s Constitutional rights.
The Ninth Circuit Court of Appeals is hearing the arguments, and the Obama Administration claims that the Jones ruling was not specific enough. Basically, because it did not make clear the need to obtain a warrant in each and every situation, a loophole was left wide open which actually allows GPS tracking despite the court’s intentions.
The brief submitted to the court argues that “requiring a warrant and probable cause would seriously impede the government’s ability to investigate drug trafficking, terrorism and other crimes,” according to the Wall Street Journal. The brief also argues that the tracking of a person’s movements using a GPS device is only a “limited intrusion” on one’s privacy.
In US v. Jones, the Supreme Court unanimously ruled that the use of GPS tracking devices on the vehicles of suspected criminals without a valid warrant violated the Fourth Amendment, more specifically unreasonable search and seizure. Those who advocate for privacy hoped that this decision would have set the precedent for cases dealing with warrantless tracking for all kinds of electronic surveillance devices besides GPS devices.
Currently, law enforcement is able to access digital records such as emails and cellphone location data without obtaining a warrant. However, searches within schools and at border crossing locations have been deemed exempt from the warrant requirement.
Author: Khristen Foss
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When Chief Judge Belvin Perry wrote his administrative order regarding the use of GPS monitoring devices for high-risk defendants, he never envisioned a monopoly in Orange County. But that is exactly what happened. Court Programs Inc. (CPI) was an already present monitoring service that somehow entrenched itself in the court system without going through a bidding process. Now, the company and the courts are under fire.
Perry’s four-page order provided only a loose contract in regard to tracking defendants. For example, there was no strict requirement by law that the service monitoring the GPS tracking device notify law enforcement if a restriction had been violated. It was simply assumed that the company would. Since many of the defendants selected to wear the bracelets were awaiting trials on domestic violence or sex offender charges, this lack of detailed instruction has raised many concerns. In fact, two such defendants fled while being monitored but authorities were not notified in a timely fashion. In another case, an employee of CPI falsely accused a defendant of violating restrictions in order to force payment.
While other counties have a list of monitoring services for defendants to choose from, Orange County never engaged in a bidding and proposal process. And although Perry’s order restricted judges from specifically naming a GPS monitoring service, court records revealed that in more than 550 of 800 cases justices directed defendants to CPI because it was the only known service available. Hence, Orange County appeared to have a monopoly with CPI when it came to outfitting defendants with a GPS tracking device. Because there was no competition, CPI could charge what it wanted and follow its own agenda for notifying authorities.
The average cost for monitoring an individual outfitted with a GPS-enabled bracelet in most counties is between $5 and $9 a day, but CPI charges defendants $12 a day, though it claims that it receives no taxpayer money for its services while other services are subsidized by the government. The courts cannot afford to lose their jurisdiction to a private, independent monitoring company that does not put public safety ahead of its profit margin, which is why it is important to get other companies involved.
Chief Judge Perry is rewriting his administrative order to rectify these issues and build a stronger contract that details the proper and lawful procedures for monitoring. Two monitoring companies have submitted proposals and are awaiting approval. Perry is hopeful that new companies coming in will create a more competitive environment that will lessen the cost and make companies more accountable, giving defendants a choice in their GPS tracking service.
US v. Jones rocked the world of law enforcement, sending many offices including the FBI back to square one on many cases of GPS surveillance that lacked a warrant granting the right for this intrusion into the private lives of many suspected criminals. It was the unanimous agreement that any surveillance period using a GPS tracking device takes away an individual’s expectation of privacy when going about their day-to-day activities. After any landmark Supreme Court decision such as this more issues are typically brought before the court relating to it, and some wonder if the court will soon address the issue of GPS tracking devices used in the workplace to keep track of the whereabouts of employees.
Using the Jones case as a guideline, global law firm Proskauer predicts GPS in the workplace will soon come before the Supreme Court, mostly because of the privacy issues addressed in the Jones case. Justice Scalia raised the issue of trespass once a device is placed on a suspect’s vehicle, and this could possibly lead to the decision that GPS devices are not allowed on employees personal vehicle.
In the months leading up to the Jones decision, a New York court decided that affixing a GPS device to the personal vehicle of a government employee in attempts to prove misconduct during business hours was in fact legal. A New Jersey court decided in the case of a private investigator being monitored via GPS in his own personal vehicle that the employer had not violated his right to privacy as he “did not allege travel to any secluded or private areas where there might be an expectation of privacy.”
Back to the Jones case, where Justices Sotomayor and Alito pointed out that the length of time the GPS tracking device was used goes too far with respect to the Fourth Amendment, which addresses an individual’s right to privacy. Jones was monitored for four weeks, and Sotomayor felt this would make investigators privy to a host of irrelevant information, including political, religious, familial, professional, and even sexual associations.
The states of California and Texas have laws currently in place making the installation of GPS tracking devices illegal without the consent of the vehicle’s owner. However, this does not apply to employer-owned vehicles. Only a few courts have faced cases dealing with the monitoring of employees using GPS. A federal court in Missouri permitted the use of a GPS tracking device on a company car back in 2005, stating it was in fact not at all an invasion of privacy. The employer owns the car, and as such should be able to install whatever they wish, including a GPS device to monitor the employee that happens to be driving it. Usually this is done because there is suspected misconduct, like reports of an employee taking care of personal business on company time or not showing up where the employee is supposed to at the scheduled time.
Regardless of whether or not a company chooses to track their employees, it all comes down to how they go about it. It is this author’s opinion that personal vehicles be kept out of the discussion altogether, leaving only company vehicles as an option for the installation of GPS devices. It shouldn’t matter where that person goes in their own car. At the same time, there should be rules put in place addressing the practice of GPS monitoring of employees in company cars, such as making them aware they are being tracked. It is expected that this will be brought before the Supreme Court at some point in the near future, and you can count on RMT to keep you up to date throughout the process.
How do you feel about the use of GPS tracking devices in the workplace?
Once used only to track released sex offenders under Jessica’s Law, California counties are now looking at and implementing early release programs based on GPS technology for other nonviolent criminals. Inmates are being fitted with tracking devices and monitored by probation officers through a laptop and Google Earth maps, thus reducing prison overcrowding and cost.
In October 2011, California passed realignment legislature that allows the state to delegate nonviolent criminals formerly under its jurisdiction to county jails. Though there are no direct transfers, new offenders receiving a sentence or finishing out a sentence, can be assigned to the county. Because of the influx of inmates, officials are seeking solutions to lessen the burdens of prisons filled beyond capacity.
Kings County, for example, is dealing with the problems brought on by a prison house made for 361 filled to 440. It has recently outfitted 80 inmates with GPS tracking ankle bracelets through an early release program, though officials do warn that such programs are not an end-all solution to the problem of overcrowding. Some prisoners simply need to stay behind bars. Kings County plans to increase its early release program until a new state-funded prison is built in 2015. They will use a private company to monitor the inmates for a cost of $4.25 a day per person. Compare this to $55 a day to keep a prisoner in jail.
Fresno County also plans to launch an early release program for low-risk inmates to include 50 individuals initially. GPS tracking devices would be placed before and after sentencing to reduce the prison population. Like Kings County, Fresno County plans to use a private company to monitor its inmates, which will cost about $70 less a day per person than keeping that same person in prison.
Though there are those who oppose GPS tracking for its seeming infringement on a person’s rights, those selected to be monitored see the program as freeing and definitely better than sitting in a jail cell. They can live at home and go to work; they can even go to the grocery store and other places approved by the probation officer. But if a GPS-enabled ankle bracelet is cut off or the set perimeters are violated, the monitoring system sends an automatic notification to the authorities so that the one under house arrest can be quickly apprehended.
GPS tracking may not be an end-all solution, but it certainly goes a long way toward helping authorities reduce overcrowding and cost in their prison systems.
Lafourche Parish Sheriff Craig Webre requested the bill be filed and asked the Senate Committee on Judiciary to advance the proposal. He also informed its members he owns part of a company that sells tracking devices, among other related services.
The Louisiana Board of Ethics issued an opinion in 2002 stating Webre could sell ignition interlock devices, which are often required of drunk-driving offenders, just as long as he steers clear of doing business in Lafourche Parish. Webre said he’s following the same guidelines with the GPS tracking systems.
He told the committee he came up with the idea for the proposed law when he heard about a burglary involving a sex offender who was being tracked by GPS because of a court order. When coupled with the fact that Lafourche Parish has had 234 burglaries reported this year, he said a light went off.
“They were able to solve that burglary with the GPS data,” Webre said.
To put the rest of the pieces together, Sen. Gary Smith, D-Norco, filed Senate Bill 649 to target crimes involving burglary, theft and home invasion. He said individuals who carry out these crimes tend to be repeat offenders.
“They get out on bail, and we lose track of them, and then they usually come back in for the same thing,” Smith said. “If we can keep track of them while they’re out on bail, we’ll know where they’ve been and what they’ve been doing.”
Smith’s bill would allow a judge to mandate, as a condition of bail, that such defendants wear a GPS device if they can afford it. If the alleged offender is unable to pay for the tracking services, a provision in the bill permits community service in lieu of payment.
“They could even be a first-time offender,” Smith said. “They do not have to be a repeat offender.”
Sen. Yvonne Dorsey-Colomb, D-Baton Rouge, said she isn’t convinced that accused first-time offenders should be included in the legislation. She urged Smith to consider revisions before the bill is introduced on the Senate floor for further debate.
“I think if the judge is going to consider (the accused’s) criminal record, then he should also consider if they don’t have one,” she said. “A person is innocent until proven guilty.”
If adopted by the House and Senate, and then subsequently signed into law by Gov. Bobby Jindal, the bill would become law Aug. 1. The legislation will next be heard by the full Senate.
by Jeremy Alford
It appears not all citizens are protected from warrantless tracking after all, despite the recent Supreme Court ruling in the Jones case which declared GPS tracking of suspected criminals conducted without a warrant unconstitutional. In Iowa, a federal judge decided evidence gathered with a warrantless GPS tracking device installed on the vehicle in the case against a suspected drug trafficker is admissible in court.
DEA agents affixed a GPS tracking device on the car of Angel Amaya without first obtaining a warrant, and US District Judge Mark Bennett declared the evidence was admissible in court because the device was placed prior to the Jones ruling. Agents did exactly as they should at the time, acting in good faith and following the laws laid out by the 8 th Circuit Court of Appeals stating warrantless tracking was a completely legal form of surveillance in Iowa and six additional states.
This is the third such ruling by federal court judges since the decision was made at the Supreme Court level. That means not all criminals are out of the woods yet, unless they happen to live in a state that did not allow warrantless GPS tracking, or if the evidence was gathered after the Jones case was decided.
“It is a bit of an end-run around for law enforcement,” according to Hanni Fakhoury, an attorney with the Electric Frontier Foundation. “And it leads to disparate results because whether [GPS evidence] gets suppressed or not depends on what the law of the circuit was prior to Jones.” Which courts had previously deemed warrantless GPS tracking legal? The 7 th (Illinois, Wisconsin, and Indiana), 8th (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North and South Dakota) and 9th (Alaska, Arizona, California, Guam, Hawaii, Idaho, the Mariana Islands, Montana, Nevada, Oregon, and Washington) had all ruled in favor of warrantless tracking.
What does this mean for law enforcement officials in these 19 states? Provided the “good faith exception” is used supporting the placement of the GPS tracking device on a suspect’s vehicle in order to more effectively conduct surveillance, and that the device was placed prior to the Jones decision, evidence could be admissible.
Legal experts feel this is one big disaster for the Supreme Court ruling. “If we’re going to apply the law one way in half the country and another way in the other half of the country, that’s a real problem,” said Fakoury. The 2011 Supreme Court Davis v. US case brought about this good faith exception, used for searches that were conducted legally at the time, but were later determined to be unconstitutional.
The defense attorney representing Amaya, R. Scott Rhinehart, was shocked after hearing the court’s decision. “I’m not sure where this is coming from to be honest with you,” he said. He points out that “good faith” was no part of the Supreme Court’s decision.
Amaya was suspected of drug trafficking, and was indicted last July for possession and conspiracy to distribute methamphetamine, cocaine, and marijuana. GPS tracking devices were placed on the vehicles of nine different vehicles which belonged to a handful of suspects, three of which were vehicles owned or driven by Amaya.
So far, three cases in total have succeeded using this good faith exception; the other two being in Hawaii and California. Fakhoury says the Davis ruling itself, not the judges application of the ruling, is to blame. “Davis is a really poorly-reasoned, not well thought out option. This situation is just going to keep popping up again and again,” he said. “And the whole point of a Supreme Court ruling is to clarify the law and make it uniform across the country.”
We’ve provided extensive coverage on the recent Supreme Court ruling regarding the use of a GPS device to monitor and track the movements of suspected criminals. If you haven’t been following along, this started when Antoine Jones, a convicted drug dealer, challenged the court’s conviction after being found guilty, based on evidence collected with a GPS device affixed to his vehicle. The Supreme Court decided unanimously, back in January, that law enforcement should not be allowed to use a GPS trackingdevice in this way without first obtaining a warrant.
Objections with this decision are now coming from the FBI who must deactivate a multitude of these tracking devices in certain investigations, according to FBI director Robert Mueller. He says they must now conduct physical surveillance of such suspects, stretching resources thin. “Putting a physical surveillance team out with six, eight, 12 persons is tremendously time intensive,” he says, adding that the ruling “will inhibit our ability to use this in a number of surveillances where it has been tremendously beneficial.”
The exact number of the devices which were deactivated has not been released, but it is known that the FBI possesses 3,000 GPS devices; information which was released by the FBI’s general counsel a couple of weeks ago at a law school conference. According to Mueller, “we have a number of people in the United States who we could not indict, there’s not probable cause to indict them or to arrest them who present a threat of terrorism, articulated maybe up on the internet, may have purchased a gun, but taken no particular steps to make a terrorist act…and we are stuck in the position of surveilling that person for a substantial period of time.” He claims the GPS trackers “enabled us to utilize resources elsewhere.”
He assures they are complying with the court’s ruling, and adds that they will only allow GPS monitoring of suspects in cases where it can legally be done. This is comforting, as the majority of citizens feel that this is taking the investigation process to a whole new, uneasy level. Its Big Brother-like feel is most likely what led the court to reach their decision in the matter. An ACLU lawyer, Catherine Crump, says that authorities’ claims of any investigation being affected adversely by the need to obtain a warrant to conduct GPS surveillance are “unfounded, as many law enforcement agencies routinely obtain such approval for GPS tracking.”
Have an opinion on this case? Comment below and let us know if you support the court’s decision, or the idea that the FBI will suffer from the ruling’s requirements.
In the GPS community, everyone is talking about the U.S. Supreme Court’s recent ruling on the guidelines when using GPS in law enforcement. When police secretly tagged a suspected drug dealer’s vehicle with a tracker, then used the resulting data to charge him with a crime, they set in motion a legal battle that has had international effects.
The final verdict states that in order to place a GPS tracking device on an individual’s private property, U.S. officers must first obtain a warrant from a judge. According to the unanimous decision of the Supreme Court justices, attaching a device to an item owned by someone is an unlawful violation of their privacy, unless there is already sufficient evidence of guilt to justify a search warrant. Police departments around the nation will certainly be scrambling to update their policies and ensure that their use of GPS tracking complies with the legal clarification.
Canada’s legal code is actually slightly ahead of the United States in addressing the use of GPS in law enforcement. The law already has a section on tracking, stating clearly that officers must get a special “tracking warrant” before using an electronic device to follow an individual’s movements. It also provides guidelines for the use of those devices. For example, a tracking warrant has a sixty-day lifetime; after which it must be reviewed to determine whether its use is still legal. Police must also show that there is a high probability of gaining evidence by the use of a tracker before the warrant is issued.
The idea of the government using GPS tracking to find out what citizens are up to has, not surprisingly, sparked public debate. Some make the case that if you’re not doing anything wrong, you don’t need to be afraid of what police might find out about you. Others, however, are strongly opposed to giving law enforcement the right to watch them without their knowledge. The restriction or expansion of GPS tracker use by law enforcement agencies will likely be unpredictable during the first few years of its widespread availability. The debate is sure to be lively, and will probably include quite a few more legal battles like the one that was recently decided by the U.S. Supreme Court.