GPS, The FBI, and the Fourth Amendment

 

 

In 2004, Antoine Jones, owner and operator of a nightclub in D.C. was suspected of trafficking in narcotics. Various investigative leads were used by the DC police and the FBI, including visual surveillance, use of a camera focused on the front door of his club, and a pen register.

Based on information gathered from the sources, the investigators sought a search warrant allowing them to install an electronic tracking devise on a vehicle Jones used, a Jeep Grand Cherokee. The United States District Court for the District of Columbia issued a warrant authorizing the investigators to install the GPS tracking device in the District of Columbia within ten days. Then agents installed the device on the undercarriage of the Jeep on the 11th day, and while the jeep was in a public parking lot in Maryland.

After 28-day’s surveillance, Jones’ associates and stash houses were identified. District Police seized a total of 97 kilos of cocaine and $850,000. Jones and several of his co-conspirators were indicted, tried, and convicted in 2007.  They were sentenced to life in prison.

On appeal, the government had to concede they did not comply with the terms of the warrant, so they argued that a warrant was not needed. All 9 justices disagreed, for three different reasons. The main argument was that Jones’ vehicle was on a public street and there was no reasonable expectation of privacy.

The Justices also took the position that police already had probable cause (which they needed for the warrant).  This probable cause was usually sufficient to search a car on the roadway, but that argument failed as it was not made to the lower court. Another position argued below was that it was not Jones’ car, as it was registered to his wife.  That argument was also waived as not being raised in the Supreme Court.  What was the ruling?

Five justices said the government trespassed upon private property (the undercarriage), similar to a constable hiding in the baggage compartment to see where it was going, or to overhear the conversations of the passengers, something which would have violated the constitution at the time it was first adopted.

Four others felt Jones did have a reasonable expectation of privacy in the use of the long term GPS tracking of his movements. One of the five, agreeing with the trespass holding, was more concerned with short term tracking, finding it invasive to see if a person visited a psychiatrist, an abortion clinic, a criminal defense attorney, a gay bar, an AIDS treatment center, which house of worship you go to or a pay by the hour motel.

What do we learn from this case? Comply with the conditions of the warrant. Serve it in the jurisdiction, and within the time frame. The court left open the question of the modern technology that would also allow tracking without actually placing a device on the car, with or without a warrant. U.S. v. Jones, January 23, 2012

David M. Waksman, J.D., is a nationally known former homicide prosecutor with vast experience in trying violent offenders and a former sergeant with the NYPD. He served for 35 years with of the Miami-Dade (Fla.) State Attorney’s Office, primarily in the Major Crimes Division. He teaches Case Preparation and Courtroom Presentation, Police Involved Shootings, Injury and Death Investigations, and Criminal Law, at the Miami Dade College School of Justice, In-Service Training Unit and at various police departments in South Florida.  He also taught for twenty years at the Homicide Seminar for the Southern Police Institute. His specialty is Fourth and Fifth Amendment issues. He has tried almost 200 jury trials, including 79 for first degree murder. He is the author of the Search and Seizure Handbook, 3/ed.  It was cited by the United States Supreme Court in Hudson v. Michigan, 547 U.S. 586 (2006), available from Prentice Hall.

Learn more about this article here:

http://www.amazon.com/David-M.-Waksman/e/B001JRV3Q8

– See more at: http://www.lawenforcementtoday.com/2012/09/24/gps-the-fbi-and-the-fourth-amendment/#sthash.w0UcIBKb.dpuf

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