Supreme Court Watch: "I Spy with My Electronic Eye" The Widening Net of Surveillance in the Modern Age

Vol. 35 No. 2

Sophia M. Stadnyk is senior associate counsel with the International Municipal Lawyers Association in Bethesda, Maryland.

In determining whether [GPS] tracking devices . . . violate the Fourth Amendment’s guarantee of personal privacy, we may not shut our eyes to the fact that they are just advance ripples to a tidal wave of technological assaults on our privacy.

—Chief Judge Kozinski, v. Pineda-Moreno, 617 F.3d 1120, 1125 (9th Cir. 2010).

 

The U.S. Supreme Court recently agreed to hear the appeal in United States v. Jones,1 a case involving the use, by police, of a global positioning system (GPS) to gather information about a suspect’s movements over an extended period of time.

The First Blink

A necessarily brief review of the Court’s approach to electronic surveillance begins with Olmstead v. United States,2 involving an alleged conspiracy to import and sell liquor from Canada in the United States, contrary to the National Prohibition Act, and addressing “whether the use of evidence of private telephone conversations between the defendants and others, intercepted by means of wire tapping, amounted to a violation of the Fourth and Fifth Amendments.”3 Using wires inserted along the ordinary telephone wires, police intercepted telephone messages between the homes of the conspirators and the building they used as an office. The Court held that the Fourth Amendment was inapplicable because there was no searching and no seizure, as what was “taken” was testimony of “voluntary conversations secretly overheard.”4 This evidence was “secured by the use of the sense of hearing and that only. There was no entry of the houses or offices of the defendants. . . . The intervening wires are not part of [their] house or office any more than are the highways along which they are stretched.”5 Justice Brandeis, dissenting (and peering into the future), noted that “[d]iscovery and invention have made it possible for the government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet. . . . The progress of science in furnishing the government with means of espionage is not likely to stop with wire tapping.”6

In 1963, the Court determined that verbal evidence could be the fruit of official illegality under the Fourth Amendment:

The exclusionary rule has traditionally barred from trial physical, tangible materials obtained either during or as a direct result of an unlawful invasion. It follows from our holding in Silverman v. United States, 365 U.S. 505 (1961) [evidence obtained by using premises adjacent to a private home to deploy a “spike mike” into the common wall and beyond was inadmissible because of the unauthorized physical trespass], that the Fourth Amendment may protect against the overhearing of verbal statements as well as against the more traditional seizure of “papers and effects.”7

A few years later, the Court discounted Olmstead’s “trespass doctrine,” finding the Fourth Amendment’s reach could not be defined by the extent of any physical intrusion into a given enclosure. In Katz v. United States,8 the FBI had arrested Katz for transmitting bets using the telephone, in violation of federal law, based on recordings made by a bugging device agents had placed on the outside of a public phone booth. No warrant had been obtained for the electronic surveillance. The Court held that the fact that the electronic device did not penetrate the wall of the booth had “no constitutional significance.”9 Further, the Court redefined the meaning of “search” under the Fourth Amendment, finding that eavesdropping violated the reasonable expectation of privacy on which Katz had justifiably relied in using the phone booth, and thus, it constituted a search and seizure within the meaning of the Fourth Amendment.10

In United States v. Knotts,11 the Supreme Court held that the warrantless monitoring of signals from a beeper (a radio transmitter), placed inside a container sold to the defendant, did not invade any legitimate expectation of privacy. (Note, though, that Knotts did not challenge the warrantless installation of the beeper.) The governmental surveillance by means of the beeper amounted mainly to the following of a vehicle on public streets and highways. Because a person travelling in an automobile on public thoroughfares had no reasonable expectation of privacy in his movements from one place to another, the monitoring was held to be neither a search nor a seizure within the meaning of the Fourth Amendment.12 The Court, however, reserved for another day the question of whether the Fourth Amendment would be implicated if 24-hour surveillance was possible: “[I]f such dragnet type law enforcement practices as [Knotts] envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”13

The Second Blink

The Jones case before the Court is an appeal from a decision of the U.S. Court of Appeals for the District of Columbia Circuit. Antoine Jones, a nightclub operator and owner, was suspected of being part of a drug distribution operation in D.C., in which Jones was allegedly the primary supplier of cocaine to members of the operation who, in turn, distributed the drugs to purchasers in D.C. and . Law enforcement officers found that physical surveillance was ineffective; further, Jones was believed to deal only with known associates, and the officers were unable to recruit a source who would be in a position to purchase narcotics from Jones or to introduce an undercover officer for that purpose. This limited their ability to obtain evidence on how Jones allegedly redistributed large quantities of drugs in the metro D.C. area, the identities of his alleged co-conspirators, and the manner in which they disposed of the proceeds of the operation.

In 2005, the officers obtained a warrant authorizing them to install a GPS device on Jones’s Jeep within 10 days of the issuance of the warrant, and only within D.C. The officers, however, did not install the device until 11 days after the warrant was issued and installed it while the Jeep was parked at a public lot in . The device was used to monitor the Jeep’s movements continually over a 28-day period, allowing officers to track Jones to a suspected “stash house” in Maryland, where officers later found 97 kilograms of powder cocaine, almost a kilo of crack cocaine, and items used to process and package narcotics. The GPS tracking information was essential to the government’s case, enabling prosecutors “to paint a picture of [Jones’s] movements that made credible the allegation that he was involved in drug trafficking.”14

Following a jury trial, Jones was convicted and sentenced to life imprisonment. He moved to suppress the information obtained from the mobile tracking device, arguing the use of the GPS monitor violated his reasonable expectation of privacy and was a search subject to the reasonableness requirement of the Fourth Amendment. The government contended that the placement of the GPS device was proper, even in the complete absence of a court order, because Jones lacked a reasonable expectation of privacy in the whereabouts of his vehicle. (In the district court, the government conceded the violations of the court’s order and confined its arguments to the issue of whether or not a court order was required, and asserted that it was not.15) The district court granted in part and denied in part the motion to suppress the GPS-obtained data, finding that the information obtained while the vehicle was on public roads was admissible.16 On appeal, the D.C. Circuit reversed, ruling that the use of the device to track Jones’s movements throughout the 28-day period was a Fourth Amendment search.17 It referred to the ruling in Knotts and the Supreme Court’s express exception in relation to theoretically possible 24-hour surveillance. Focusing on that reservation, the D.C. Circuit distinguished Knotts on the basis that the monitoring there involved a single journey, rather than a prolonged period of surveillance. Jones had a reasonable expectation of privacy in the public movements of his vehicle over the course of a month because he had not exposed the “totality” of those movements to the public (that is, the likelihood a stranger would observe all of his movements during one month was “essentially nil”).18 The use of the GPS device to monitor those movements defeated that reasonable expectation, given that such prolonged surveillance differed in kind, not just degree, from tracking a single journey:

It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.19

The court also addressed, and rejected, the “constructively exposed” argument (the possibility that, even if all of Jones’s movements during the 28-day period were not actually exposed to the public, they were “constructively exposed” because “each of his individual movements during that time was itself in public view”20). Accordingly, Jones’s conviction was reversed because it was obtained with evidence procured in violation of the Fourth Amendment.

The U.S. Court of Appeals for the Ninth Circuit has also addressed the issue of GPS surveillance, in v. Pineda-Moreno.21 An agent of the Drug Enforcement Administration (DEA) suspected that Juan Pineda-Moreno was growing marijuana after seeing him make purchases, at a Home Depot, similar to those used for such grow-ops. Agents installed GPS devices on the underside of Pineda-Moreno’s Jeep on seven different occasions. Two installations occurred when the Jeep was parked in Pineda-Moreno’s driveway, a few feet away from his trailer. The driveway had no gate, no fence, and no sign prohibiting trespassing. Information from the GPS alerted agents that the Jeep was located at a suspected marijuana “grow site,” and Pineda-Moreno was stopped and arrested. He later consented to a search of his trailer, where agents found two large garbage bags of marijuana. Pineda-Moreno moved to suppress the evidence obtained from the mobile tracking devices, arguing that the agents violated his Fourth Amendment rights by attaching the devices to his vehicle while it was within the curtilage of his home, invading an area in which he possessed a reasonable expectation of privacy.

The Ninth Circuit initially held that the officers did not invade an area in which the defendant possessed a reasonable expectation of privacy: his driveway, at most, was “only a semiprivate area.”22 Because Pineda- did not take steps to exclude passersby from his driveway, he could not claim a reasonable expectation of privacy in it.23 Further, the undercarriage of a vehicle, as part of its exterior, was “not entitled to a reasonable expectation of privacy.”24 Citing Knotts, the court also rejected the argument that the use of mobile tracking devices to continuously monitor the location of the Jeep violated his Fourth Amendment rights because the devices attached to the vehicle were not generally used by the public. The devices were simply a substitute for the activity of following his vehicle along public streets, and the only information obtained was the same as could have been procured had the Jeep been physically followed.25

On rehearing en banc, a divided Ninth Circuit affirmed.26 The dissenting judges had plenty of issues with the decision below, noting that the “electronic tracking devices used by the police in this case [had] little in common with the primitive devices in Knotts.27 Referring to the interplay between GPS satellites and cell phone towers, which furnished “law enforcement with a swift, efficient, silent, invisible and cheap way of tracking the movements of virtually anyone and everyone they choose,”28 it was clear that the day of “dragnet[-]type law enforcement practices” predicted by Knotts had arrived. “This is precisely the wrong time for a court covering one-fifth of the country’s population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement,” concluded Chief Judge Kozinski.29

With the grant of certiorari in Jones, the issue now comes before the U.S. Supreme Court. In addition to the question presented by the petition (whether the warrantless use of a tracking device on Jones’s vehicle to monitor its movements on public streets violated the Fourth Amendment), the parties were directed to brief and argue the following question: “Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.”

On a peripheral note, the Supreme Court of Canada decided the issue of the admissibility of evidence obtained through the unauthorized installation and monitoring of an electronic tracking device (a beeper) in a 1992 ruling, R. v. Wise.30 Police suspected that Wise was involved in a series of homicides and obtained a warrant to search his vehicle. They towed his car to a police station to carry out the search, and while the car was in police custody but after the warrant had expired, officers installed the beeper. Like the device in Knotts, this could not provide a continuous record of the movements or position of the car; rather, it gave “only a very rough idea” of the vehicle’s location. The Crown conceded that the installation of the tracking device in the circumstances constituted a violation of section 8 of the Canadian Charter of Rights and Freedoms, so the Court focused on whether the electronic surveillance was an unreasonable search in violation of section 8.31 A unanimous Court concluded that it was, but the majority held that there was a markedly lesser expectation of privacy by the users of motor vehicles, and this lessened privacy interest, combined with the use of an unsophisticated device, established that the search was only minimally intrusive. Based on consideration of other factors, the majority held the evidence was admissible under section 24(2) of the Charter. Section 8 reads: “Everyone has the right to be secure against unreasonable search or seizure.”32

, however, dissented. As did the Jones court, he emphasized the distinction between exposing oneself to casual public view or the view of police monitoring roads by electronic means in the course of their regulating or observing such places, and targeted police surveillance that tracked a specific person’s movements using a device attached to his car.33 “[I]in this era of explosive technology, can it be long before a device is developed that will be able to track our every movement for indefinite periods even without visual surveillance?. . . This is the time to begin regulating the use of electronic tracking devices . . . before the law enforcement authorities begin routinely using them as part of their work habits.”34

The Unwavering Gaze

Commentators have pointed to the “watershed event” of 9/11 as providing the “catalyst for the widening of police surveillance and search authority,” and the establishment of a new “privacy paradigm” for the balancing of the authority for police surveillance against civil rights and privacy protections.35 Moreover, as these cases indicate, developments in technology have made electronic surveillance and data harvesting possible to an unprecedented degree, with little or no physical intrusion or need for human intervention. According to The Economist, last year, over 1,200 government agencies and almost 2,000 private entities were working on intelligence, counter-terrorism, and homeland security-related programs.36

A recent poll conducted by the for Public Affairs Research proves illuminating. Among the findings:

 

•   54% of respondents felt protecting the rights and freedoms of citizens was more important than making sure citizens were protected from terrorism (34% felt security outweighed civil rights protections);

•   64% agreed that in fighting terrorism, it was “sometimes necessary to sacrifice” some civil liberties;

•   71% favored the installation of surveillance cameras in public places to watch for suspicious activities;

•   86% agreed that 9/11 had an impact on individual civil liberties, and, when asked to predict the situation in 2021, 52% felt that on balance, by then they will have lost more freedoms that they will have gained.37

Circuit Judge Reinhardt, dissenting in Pineda-Moreno, would likely agree. “I have served on this court for nearly three decades,” he said and regretted that “over that time the courts have gradually but deliberately reduced the protections of the Fourth Amendment to the point at which it scarcely resembles the robust guarantor of our constitutional rights we knew when I joined the bench.”38


Endnotes

1.  625 F.3d 766 (D.C. Cir. 2010), cert. granted, 131 3064 (2011).

2.  277 438 (1927)

3.  Id at 455.

4.  Id at 464.

5.  Id at 464–65.

6.  Id at 473–74.

7.  Wong Sun v. , 371 471, 485 (1963).

8.  389 347 (1967).

9.  Id at 353.

10.  Id

11.  460 276 (1983).

12.  Id at 281, 285.

13.  Id at 284.

14.  v. Maynard, 615 F.3d 544, 567 (D.C. Cir. 2010).

15.  v. Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006).

16.  Id at 88.

17.  Maynard, 615 F.3d at 560.

18.  Id

19.  Id

20.  Id at 560–61.

21.  617 F.3d 1120 (9th Cir. 2010).

22.  v. Pineda-Moreno, 591 F.3d 1212, 1215 (9th Cir. 2010).

23.  Id

24.  Id

25.  Id at 1217.

26.  617 F.3d at 1120.

27.  The beeper required at least one person to follow in a car to keep the signal in range, while the GPS required no human intervention to record locations and provided a continuous log or map of movement. at 1124 (Chief Judge Kozinski, dissenting from the denial of rehearing en banc). Chief Judge Kozinski added that just because there were many parts of a person’s property that were accessible to strangers for limited purposes did not mean that one thereby extends an invitation to “neighbors to use the pool, strangers to camp out on the lawn or police to snoop in the garage.” at 1123.

28.  Id at 1126.

29.  Id

30.  [1992] 1 S.C.R. 527.

31.  Section 8 reads: “Everyone has the right to be secure against unreasonable search or seizure.”

32.  [1992] 1 S.C.R. 527 (S.C.C.), available at www.canlii.org/en/ca/scc/doc/1992/1992canlii125/1992canlii125.html.

33.  Id

34.  Id

35.  William Bloss, Escalating U.S. Police Surveillance After 9/11: An Examination of Causes and Effects,Surveillance & Society Special Issue on “Surveillance and Criminal Justice,” Part 1, 4(3): 208, 208–09 (2007), available at www.surveillance-and-society.org/articles4(3)/escalating.pdf.

36.  Ten Years On, The Economist, Sept. 3, 2011, at 12 (citing the Washington Post).

37.   for Public Affairs Research, Civil Liberties and Security: 10 Years After 9/11 (Sept. 6, 2011), available at www.apnorc.org.

38.  617 F.3d 1120, 1126 (9th Cir. 2010).

 

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