Washington, DC (Oct. 5, 2011) – This week marks the opening of the United States Supreme Court’s 2011-12 term. In what is widely expected to be one of the most important liberty and privacy cases in decades, on Nov. 8, the court will hear argument on whether the government’s secret use of a GPS tracking device on a defendant’s vehicle for a month was a search that required a warrant. The Justice Department argues that law enforcement should have the authority, unsupervised by any court, to use GPS technology to monitor and store the movements, 24/7, of whomever it targets, anywhere, anytime, without a warrant.
The case is United States v. Jones, No. 10-1259. In 2005, police investigating alleged drug activity did secure a warrant, valid for 10 days, from a federal judge who authorized the attachment in D.C. of a GPS device to a vehicle registered to the wife of defendant Antoine Jones. Law enforcement then attached the device while the car was parked in a lot in Maryland, not in D.C., and then used the GPS device to record Jones’s movements around-the-clock for four weeks—but never went back to court to ask for more time. The U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Douglas H. Ginsburg, held that to be an unreasonable search in United States v. Maynard. In Maynard, which is the case below in United States v. Jones, the court distinguished the pre-GPS law relied upon by the government. “First, unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more—sometimes a great deal more—than does the sum of its parts.”
The civil liberties and defense groups argue in their amicus brief, available here, that warrantless GPS surveillance imposes an unacceptable burden on First Amendment associational privacy rights as well as Fourth Amendment privacy rights. Led by the National Association of Criminal Defense Lawyers (NACDL), the groups included the Brennan Center for Justice at New York University School of Law, the First Amendment Lawyers Association, and three NACDL state affiliates who have appeared with NACDL in warrantless GPS tracking cases in their respective jurisdictions – the District of Columbia Association of Criminal Defense Lawyers (DCACDL), the New York State Association of Criminal Defense Lawyers (NYSACDL), and the Ohio Association of Criminal Defense Lawyers (OACDL). They strongly urged the U.S. Supreme Court to condition GPS installation and monitoring upon judicial issuance of a warrant. The brief makes clear that the warrant requirement is minimally burdensome, as illustrated even by the facts of this very case. In addition, the groups explain that there is nothing about the nature of motor vehicles that justifies a blanket exception to the warrant requirement, and that the automobile exception manifestly does not apply to warrantless GPS tracking.
Concerning the Jones case now pending before the Supreme Court, NACDL Executive Director Norman L. Reimer explains, "In this case, the Supreme Court will define a key aspect of American life for generations to come - whether privacy can survive the technological advances of the digital age. Put more bluntly, does the government have the unilateral right to track every person's comings and goings, necessarily revealing everything from religious and political associations to consultations with attorneys and physicians, without any limitation and without any showing of suspected criminality?"
"Absent a high court finding of a warrant requirement for this type of surveillance, there is simply no way for the innocent and law-abiding to disable this new feature of the brave new world of American life and law enforcement," Reimer added.
When the Supreme Court announced in June that it would be hearing this case, John Wesley Hall, a leading Fourth Amendment expert and past NACDL President said, “This will clearly be the most important privacy case since Katz v. United States (1967), and probably the biggest case of the 2011-12 Supreme Court term.”
The brief was written by Jeffrey T. Green, co-Chair of NACDL’s Amicus Curiae Committee and partner at Sidley Austin LLP in Washington, DC; Susan J. Walsh of Vladeck, Waldman, Elias & Engelhard in New York City; Professor Sarah O’Rourke Schrup of the Northwestern University Supreme Court Practicum in Chicago, Ill.; and Executive Director Norman L. Reimer and Deputy Director of Public Affairs & Communications Ivan J. Dominguez of NACDL in Washington, DC.
In 2009, NACDL filed an amicus curiae brief in People v. Weaver, a warrantless GPS case arising under New York State’s Constitution. In that case, NACDL successfully argued in that case that warrantless GPS surveillance violated the New York State constitution. And in a separate case arising under the U.S. Constitution and currently pending before the Supreme Court of Ohio, State v. Johnson, NACDL argued in its amicus curiae brief that warrantless surveillance violates the First and Fourth Amendment to the U.S. Constitution.
Oral argument in the Jones case is scheduled before the Supreme Court on November 8, 2011.
A link to NACDL’s joint amicus curiae brief in United States v. Jones is available here.
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