United States Supreme Court to Review GPS Tracking Case?

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.

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News Roundup

It’s been almost two weeks, so there’s been more news than I can reasonably cram into a news roundup. But I’ll try! 1. The General Assembly’s in session. They’re working on the budget. The News and Observer reports here that “[t]he state budget proposed by House Republicans Tuesday would slash budgets for courts, public safety … Read more

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You Don’t Know What You’ve Got When It’s Gone

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 you’ve got your hands on a good one, the real value is in sharing it with an appreciative audience. One such opinion making the rounds … Read more

Lay Opinion about Drug Activity

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Armed Robbery and Representations about Weapons

Twice each year, the School of Government welcomes newly-appointed magistrates for two weeks of training. Part of the curriculum involves learning the elements of common crimes. When I teach the elements of armed robbery, an exchange like this always ensues: Me: Imagine that a bad guy comes into a convenience store and tells the clerk … Read more

New Drug Crimes

The legislature has passed, and the Governor has signed, new S.L. 2011-12, which creates three new Schedule I drugs, defines certain synthetic cannabinoids as Schedule VI drugs, and makes several other changes to the drug statutes. (The federal government had already taken action on synthetic cannabinoids, as discussed here.) The law is effective July June … Read more

Habitual Drug Trafficking

As most of you probably know, G.S. 90-95(h) sets out special sentencing rules for drug trafficking offenses, including mandatory fines and minimum and maximum sentences that apply regardless of the defendant’s prior record. This chart summarizes the law. During the Felony Sentencing installment of my colleague Alyson Grine’s “Lunchinar” series (available on demand for free … Read more

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H33 and North Carolina Driver’s License Requirements

The State House of Representatives recently passed H 33, “An Act to Provide that Certain Consulate or Embassy Documents May Not be Used to Determine a Person’s Identification or Residence for Governmental and Law Enforcement Purposes.” Among the provisions the bill would amend if enacted is G.S. 20-7(b4), which currently permits the North Carolina Division … Read more

Index of SOG Criminal Law Materials

We at the School of Government like to think that we produce lots of useful scholarship. We write books, articles, informal papers, blog posts, and so on. Those of us working in the area of criminal law try to make our work useful to lawyers and judges involved in criminal cases. But of course, our … Read more