Articles in the Search and Seizure category - Page 36 of 45

This recent post by Professor Orin Kerr reports on an emerging split of authority on what the state needs to show about the training and experience of a drug-sniffing dog […]

Remember United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010)? That’s the drug case in which the D.C. Circuit held that “prolonged GPS monitoring [of a suspect] defeats an expectation of privacy that our society recognizes as reasonable,” and therefore typically requires a warrant. I blogged about Maynard here. The circuit court subsequently denied rehearing en banc by a divided vote. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010) (en banc).

On Friday, the Department of Justice filed this petition for certiorari, asking the United States Supreme Court to review the case. The question presented by the petition is “whether the warrantless use of a tracking device on petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment.” (As an aside, the question contains an embarrassing mistake, which I identify after the break. Think about it for a minute before you click — you already have enough information to catch it yourself.)

Here is the introduction to, and summary of, the section of the petition that argues for the necessity of Supreme Court review:

The decision of the court of appeals conflicts with this Court’s longstanding precedent that a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, even if “scientific enhancements” allow police to observe this public information more efficiently. See United states v. Knotts, 460 U.S. 276, 282-284 (1983). The decision also creates a square conflict among the courts of appeals. The Seventh and Ninth Circuits have correctly concluded that prolonged GPS monitoring of a vehicle’s movements on public roads is not a “search” within the meaning of the Fourth Amendment. The Eighth Circuit, in rejecting a challenge to GPS tracking, stated that a person has no reasonable expectation of privacy in his public movements, and it upheld tracking for a reasonable period based on reasonable suspicion. At a minimum, if GPS tracking were (incorrectly) deemed a search, the tracking in this case was likewise reasonable.

Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States. The court of appeals’ decision seriously impedes the government’s use of GPS devices at the beginning stages of an investigation when officers are gathering evidence to establish probable cause and provides no guidance on the circumstances under which officers must obtain a warrant before placing a GPS device on a vehicle. Given the potential application of the court of appeals’ “aggregation” theory to other, non-GPS forms of surveillance, this Court’s intervention is also necessary to preserve the government’s ability to collect public information during criminal investigations without fear that the evidence will later be suppressed because the investigation revealed “too much” about a person’s private life. Because the question presented in this case is important, and because the court of appeals’ decision is wrong, this Court should intervene to resolve the conflict.

Perhaps the Court will prefer to let the issue percolate more in the lower courts, but there are quite a few opinions on point already, and the Court very often grants petitions by the government, so it seems to me that there’s a pretty good chance that the Court will agree to hear the case. I hope it does. It’s an interesting and important issue. You can read a little more about the petition and the case here, here, and here. And don’t forget to check the jump to see if you correctly identified the embarrassing mistake in the question presented.

Or, Seeking Dismissal Based on the State’s Destruction of Evidence Unpublished court of appeals opinions occasionally assume the cache of bootleg recordings of live performances of the Grateful Dead. If […]

The Fourth Circuit recently decided a very interesting case with a lot of North Carolina connections. The case is United States v. Foster, and it’s available here. The facts were […]

Normally, field sobriety tests are administered before an arrest is made, as part of an officer’s investigation into a possible DWI. In that case, it’s clear that the officer need […]

Part I of this post left for another day consideration of whether a defendant who does not speak English may be deemed to have willfully refused a chemical analysis when […]

Several earlier posts a (here, here, and here) address the requirement that a person arrested for an implied consent offense be informed of statutory implied consent rights before being asked […]

I won’t have time today for a regular blog post, so I’ll just make brief mention of something I’ve been meaning to blog about for a week or two, ever […]

Happy new year! It’s great to be back at work after a relaxing vacation. I’ve written before about traffic stops. Recently, I returned to the subject and completed a pretty […]

State court decisions from other southeastern states seem to carry a bit more weight as persuasive authority than do cases from jurisdictions that are farther afield. Therefore, I thought I’d […]