News Release ~ 06/27/2011

U.S. Supreme Court to Hear Warrantless GPS Surveillance Case

Washington, DC (June 27, 2011) – In a much anticipated ruling, the U.S. Supreme Court today agreed to hear the Obama administration’s appeal of a federal court decision that the government’s use of a GPS tracking device on a defendant’s vehicle for a month was a search that required a warrant. The Justice Department argues that law enforcement should have the authority, unsupervised by any court, to use GPS technology to monitor and store the movements, 24/7, of whomever it targets, anywhere, anytime, without a warrant.

The case is United States v. Jones, No. 10-1259. In 2005, police investigating alleged drug activity did secure a warrant, valid for 10 days, from a federal judge who authorized the attachment in D.C. of a GPS device to a vehicle registered to the wife of defendant Antoine Jones. Law enforcement then attached the device while the car was parked in a lot in Maryland, not in D.C., and then used the GPS device to record Jones’s movements around-the-clock for four weeks—but never went back to court to ask for more time. The U.S. Court of Appeals for the D.C. Circuit, in an opinion by Judge Douglas H. Ginsburg, held that to be an unreasonable search in United States v. Maynard. In the Maynard opinion, the court distinguished the pre-GPS law relied upon by the government. “First, unlike one''s movements during a single journey, the whole of one''s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one''s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more—sometimes a great deal more—than does the sum of its parts.”

The National Association of Criminal Defense Lawyers (NACDL) intends to file an amicus curiae, or friend-of-the-court, brief supporting the respondent, Antoine Jones. NACDL has previously filed amicus curiae briefs in other GPS cases. Two years ago, in People v. Weaver, a warrantless GPS case arising under New York State’s Constitution, NACDL argued, and the state high court found, that warrantless GPS surveillance violated the New York State constitution. Indeed, in conducting its state constitutional analysis, that court had deep concern that “Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” The court added that “What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations -- political, religious, amicable and amorous, to name only a few -- and of the pattern of our professional and avocational pursuits.”

On June 6, NACDL filed another GPS amicus brief with the Ohio Supreme Court in State v. Johnson, which is currently pending. NACDL’s briefs in Weaver and Johnson, respectively, are linked here and here.

NACDL President Jim E. Lavine emphasized the importance of the Jones case. “What is at stake here is the constitutional right of the American people to be free from unwarranted, unsupervised, round-the-clock surveillance, and the storage and analysis of that data, by our own government. Considering the magnitude of such an intrusion into the private lives of citizens, a warrant requirement is simply a no-brainer.”

According to John Wesley Hall, a leading Fourth Amendment expert and past NACDL President, “This will clearly be the most important privacy case since Katz v. United States, 389 U.S. 347 (1967), and probably the biggest case of the 2011-12 Supreme Court term.”

The National Association of Criminal Defense Lawyers is the preeminent organization advancing the mission of the criminal defense bar to ensure justice and due process for persons accused of crime or wrongdoing. A professional bar association founded in 1958, NACDL's approximately 9,000 direct members in 28 countries – and 90 state, provincial and local affiliate organizations totaling up to 40,000 attorneys – include private criminal defense lawyers, public defenders, military defense counsel, law professors and judges committed to preserving fairness and promoting a rational and humane criminal justice system.

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