Warrantless Electronic Tracking Debate Awaits U.S. Supreme Court Ruling
A year and a half ago, a Silicon Valley community college student wound up in the cross hairs of a shadowy but common law enforcement practice now at the center of an unfolding legal drama in the U.S. Supreme Court.
On his way to school, Yasir Afifi, an Arab-American, stopped for an oil change and later discovered that the GPS tracking device he found on the underbelly of his car had been put there by the FBI without a warrant.
Now the Supreme Court is expected to decide any day whether the government has a right to use that tactic without a search warrant in a case that highlights the tensions between law enforcement needs and the privacy implications of new technologies that can track our every move.
In a Washington, D.C., case, the Supreme Court is considering whether warrantless GPS tracking violates the Fourth Amendment’s ban on unreasonable search and seizure, one of the core rules in any criminal case. The scope of the court’s ruling could have far-reaching implications when everything from smart phones to dashboard gadgets offer authorities a generous menu for tracking suspects.
The Obama administration and law enforcement groups say GPS tracking is no different from ordinary police surveillance on public streets. There is no constitutional barrier to GPS tracking in public places, they argue.
Afifi’s lawsuit against the FBI for civil rights violations is on hold while the Supreme Court considers the issue. He’s ready for
the high court’s guidance.
“I feel I might be a good part of a change in history,” said the 21-year-old West Valley College student.
“It’s reached such a high level, reaching the Supreme Court. Before you slap a tracking device on a 19-year-old’s car, you should at least have a warrant.”
Afifi is hardly an isolated example in a debate that has revealed a sharp split between civil liberties groups and police and prosecutors.
In the Bay Area alone, case files are bulging with legal sparring over GPS tracking that could be shaped by a Supreme Court ruling.
Lawyers for Yusef Bey IV, the former leader of Oakland’s Your Black Muslim Bakery, are expected to challenge his conviction for the 2007 murder of journalist Chauncey Bailey because prosecutors relied on evidence from a tracking device placed on Bey’s car without a warrant.
Lawyers for Alberto Alejandre, convicted in the 2009 gang-related murder of a San Pablo man, plan to urge a San Francisco appeals court to overturn the verdict because police tracked him with a GPS device without a warrant.
And in a San Mateo County case, attorneys for Jonathan Castro are seeking to overturn an armed robbery conviction, arguing that detectives violated his constitutional rights when they stuck a GPS device under his car in a Burlingame parking garage.
To critics of the practice, the Supreme Court’s ruling is crucial to determining how far law enforcement can go to use any tracking information, including from cell phones, without a warrant, which requires some showing of probability of criminal activity.
“This is what we’re going to be fighting about for the next 10, 20, 30 years,” said Hanni Fakhoury, an Electronic Frontier Foundation attorney. “If they get a warrant, the Fourth Amendment is satisfied. But the problem has been that often times the government is not getting a warrant.”
Courts have amply supported the government’s position, notably the San Francisco-based 9th U.S. Circuit Court of Appeals, which shapes law for California and eight other Western states. In 2010, it upheld the right of police to hide a GPS device on a suspect’s car without a warrant.
But that ruling drew a sharp warning from 9th Circuit Chief Judge Alex Kozinski, who foreshadowed the showdown in the Supreme Court by invoking George Orwell. “1984 may have come a bit later than predicted,” he wrote. “But it’s here at last.”
California state courts have generally been quiet on the issue, although the San Jose-based 6th District Court of Appeal has twice sided with law enforcement, including a ruling last year that turned away a Monterey man’s bid to overturn his arson conviction because investigators hid a GPS device on his car while he dined with his wife in Seaside.
The state Supreme Court has yet to rule on the question, although it last year allowed warrantless searches of arrested suspect’s cell phone records.
During arguments in November, U.S. Supreme Court justices repeatedly expressed concerns about warrantless GPS tracking and its implications for other tracking technology.
Justice Sonia Sotomayor cited satellites that “can hone in on your home on a block and in a neighborhood.”
Even conservative Chief Justice John Roberts asked a government lawyer: “You could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month, no problem under the Constitution?”
Yes, a Deputy U.S. Solicitor General replied, police could track all nine justices with GPS on public streets, and do it without a warrant.
Legal experts say the Supreme Court’s ruling may well apply to other technologies, including cell phones, but many predict the justices will choose the narrowest path because of the uncertainty of how tracking technology may develop.
“I suspect the court will rule narrowly,” said Orin Kerr, a George Washington University law professor.
“Each of these technologies raises different questions. I think that will be left for another day.”
Howard Mintz
Mercury News