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1. The General Assembly has been working on the budget lately. The House is proposing significant budget cuts to the court system, including reductions in the number of victim/witness legal […]
I’ve written before about how North Carolina’s law related to sex offender registration has changed over the years in response to federal mandates. In 2006 Congress passed the Adam Walsh […]
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 […]
[Editor’s note: Sorry that there was no post yesterday. I was travelling and didn’t have reliable internet access. We’re back on track today.] The misdemeanor offenses of driving after notification […]
Tomorrow’s a UNC holiday, so I’m rounding up the week’s news a day early. 1. Professor Matthew Robinson of Appalachian State University released a new death penalty study this week, […]
One of my regular daily reads is the prosecution-oriented blog Crime and Consequences. This recent post reminded me of an issue I struggled with in practice, and which many readers […]
The rules for sentencing a defendant to special probation—a split sentence—are set out in G.S. 15A-1351(a). Under that law, the court can order as part of a probationary sentence that […]
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.