The U.S. Justice Department has asked the Supreme Court to resolve a conflict between Circuit Courts of Appeal as to the constitutionality of extended GPS searches.Recall that the Ninth Circuit and the D.C. Circuit courts handed down conflicting decisions were the police have attached GPS devices to a suspect’s car without a court-issued warrant. In the D.C. Circuit’s decision the original three-judge panel found that attaching a GPS device for nearly a month would exceed a reasonable person’s expectation of privacy. It therefore overturned the defendant’s conviction. Subsequently, the full D.C. Circuit court refused to reconsider that decision.
In its petition to the Supreme Court, the Justice Department argues that “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…” However, this misses the point. It is NOT that GPS devices cannot be used for an extended period. It is that the search must be conducted pursuant to a valid warrant.
The defense’s response was the public has a constitutional right to have a judge review the matter before a warrant is issued. On this point the Fourth Amendment could not be clearer. The device recorded information – origin, route, and destination and the location and duration of every stop - every seven to ten seconds over a 28 day period. And, the police combined this information with the defendant’s cell phone information in building their case.
Nor can the Justice Department reasonably argue that obtaining a warrant would be burdensome. In fact, the police had obtained a warrant, but they let is expire before attaching the GPS device.
Given the potential magnitude of the issue, one would expect the Court to accept the case and schedule argument for the next term.