It's okay for cops to track suspects via GPS without a warrant, VA appeals court rules

The Virginia Court of Appeals ruled today that law enforcement should have the right to track criminal suspects with GPS, even without a warrant: "In a case that prompted warnings of Orwellian snooping by the government, the court unanimously ruled that Fairfax County Police did nothing wrong when they planted a GPS device on the bumper of a registered sex offender's work van without obtaining a warrant." (via @EFF)

• [AirPillo]

  Did anyone bother to raise the argument of why the need for a warrant was at all a problem with this?

  If it was legal to do this to the person in question, then what threat was posed by having to have a warrant for it?

  This wasn’t a time-sensitive situation, they were just following the person’s movements over a long period of time.

  The only reason someone would object to needing a warrant for something like this is a fear of it not being approved, and then that becomes precisely the sort of situation in which strict use of warrants is most essential.

  • [Ugly Canuck]

    It may be that being a “Registered Sex Offender” in the Commonwealth of Virginia obviates the need for a Warrant where no conversations are being intercepted or recorded, and no thing is being searched.
    My guess, and it is only a guess, is that this person’s previously-determined legal status as a sex offender ought to lead to some reduction in the amount of privacy that she could reasonably expect when it comes to her movements in public places. Public places like… highways and roads and streets.

    But even without that pre-existing status, this situation is different from a plain-clothes cop personally trailing and following a vehicle by sight…how? In what way?
    Does a cop stealthily following a suspect moving about in public and secretly noting and observing her movements, without the use of any listening device, require a warrant?
    Not where I’m from. Why should it?

    In other words, is this tracking device not simply a “silent mechanical cop”? Since when have the police required a warrant to simply follow a person around?

    It is of course a different matter where conversations are being recorded, or sensors are being used to see through things.

• [sapere_aude]

  According to the court, citizens have no expectation of privacy on public streets.

  So, assuming this decision gets appealed all the way to the U.S. Supreme Court, and the ruling is upheld on the grounds of no expectation of privacy on public streets, wouldn’t that pretty much undercut the rationale for using wiretapping laws to prosecute people who videotape cops on the street?

  • [Ugly Canuck]

    No: the gps position tracker records no images, nor does it intercept nor record communications or conversations.
    It’s no different than an actual factual flatfoot dogging a suspect around town. IMO, anyway.
    And that “Registered Sex Offender in Virginia” status must come into play in this question in some way…perhaps the Court would have held differently, if it was one of their Honors that the cops were trailing…but upon what principle?

    I have difficulty seeing by what means this tracking can be said to be a “search”, so as to require a Warrant: even granting that the Registered Sex Offenders of Virginia have not lost any rights whatsoever as a result of their designation as such – which IMO is very unlikely.

    In Canada, we might come to a different conclusion as to the Constitutionality of the police tracking vehicles in this manner: but that’s another topic, and another country, with a another constitution.

• [knodi]

  My understanding is that a warrant is special permission police get to do things that would be illegal for a private citizen to do… so no warrant to search your garbage at the curb, no warrant to covertly tail you as you drive… but YES warrant to kick down your door, and YES warrant to tap your phone.

  Does this mean that it’s legal for a private citizen to place passive GPS bugs on anything they want? Sounds like a precedent that might be just as dangerous to the Law as it is to Citizens…

  • [wygit]

    That’s what it looks like they’re saying.
    “According to the court, citizens have no expectation of privacy on public streets. The use of the GPS system provided police with the same information they could get by physically tailing a suspect, the court said.”

    It’s legal to physically tail someone (“Follow that car!”) So by their interpretation, it’s also legal to tag their car (or purse, or coat) with a GPS beacon.

    Yes, it’s terrifying.

  • [Stjohn]

    If the tracking devices get cheap and small enough,you could theoretically bug every cruiser and unmarked unit in the LAPD/CHP/LACS motorpool.
    They all have to come out of the barn sometime.

    Then you could charge a foolish amount of money for realtime updates to a smartphone app. However, I think the uptime of this service would be measured in days, if not hours.

    • [knodi]

      LOL, they’re not too expensive right now! Working with these things happens to be my day job:
      http://www.testech-elect.com/enfora/spider_at_product_specifications.htm

      The problem is battery; if you charge from the vehicle, then it’s not passive and it’s much harder to install, especially covertly. If it’s not charged from the vehicle, then you have to service them regularly. But you’re right, the day is coming….

      • [Ben Morris]

        Cars move about quite a lot, if they are actually used. A system a bit like a self-winding watch ought to provide plenty of energy. Has anyone done this in a GPS tracker yet?

• [Anonymous]

  Well, felons have already lost several constitutional rights, such as the right to vote as well as the right to bear arms. It’s not fair, no, but it’s not like there’s no precedent for it.

• [knoxblox]

  Okay, supposing we accept the argument that the GPS device is a mechanical substitute for a flatfoot on the street…but what happens to the law once the vehicle/jacket/any other object the tracker is attached to enters private property? Transmitters generally don’t have off switches, do they?

  Also, it seems perfectly clear that legislation is being engineered to deny citizens any expectation of privacy on public streets but at the same time afford public servants/police every expectation of privacy. This seems very one-sided to me, and reminiscent of the Stasi efforts to uncover and dispose of the class enemy.

  I feel we’re headed down a very slippery slope.

  • [AlexG55]

    That’s why I think tracking a jacket is a lot worse than tracking a car, and might well be worth a different test case. Unless the owner of the car has a very large, fenced-in property, then their car is either on the public street, on the driveway (and visible from the public street) or in the garage (in which case our hypothetical cop tailing the car would have been able to see it go in from the public street). So a GPS doesn’t give them information about where the car is that they couldn’t get by following it around on public roads (no warrant needed).

    On the other hand, if you’re tracking someone’s clothes then you have info about where they are in their house at any given moment. This is private, and should need a warrant.

• [kleer001]

  Good thing GPS modules aren’t the size of dust motes and wildly reproduce.

• [sapere_aude]

  Here is the full text of the court’s opinion:

  http://www.courts.state.va.us/opinions/opncavwp/0521094.pdf

  It’s worth a read. And I have to say that the court’s rationale is pretty compelling.

  It’s based almost entirely on arguments about “expectation of privacy”. I should have read the opinion before posting my previous comment; because it’s clear from the opinion that the claim that “citizens have no expectation of privacy on public streets” did not originate with this court’s ruling in this particular case, but is actually a well-established legal principle that has lots of case law precedent behind it. Basically, the legal precedent holds that your privacy is constitutionally protected only if you have “a subjective expectation of privacy that society recognizes as reasonable”; and courts have long ruled that such an expectation of privacy is unreasonable in a public place where you make no deliberate effort to prevent other people from observing you or eavesdropping on you. And, according to the precedent, the use of technology to aid in observing someone doesn’t alter the basic principles of expectation of privacy. As long as the technology can only observe what a human bystander would be able to observe, that technology doesn’t violate anyone’s privacy any more than a human observer gathering the same information would.

  After reading this opinion, I’m even more convinced that I was right to conclude that prosecuting citizens for videotaping cops in a public place is probably unconstitutional. Sorry, Canuck, but the opinion doesn’t seem to support your arguments.

  • [Ugly Canuck]

    Thanx for the link: it does seem that the police don’t have a leg to stand on when objecting to being videotaped or recorded by members of the public, in public places, in the performance of their duties: if you are out in the public spaces, then you are out in the public spaces.

    But the decision does fit with what I wrote above: so long as the device is not intercepting any conversations occurring in the car being tracked, or recording any other activity of the subject which would carry a reasonable expectation of privacy – which is not the case here – there’s nothing in the simple placement (and monitoring) of a geo-tracker on a subject’s vehicle which would IMO require that a warrant be first obtained by the police.

    To say it again, this GPS tracker is akin to a tireless unblinking note-taking cop following you while you were driving on the roads. And that type of police activity has never required a Warrant.

    • [Anonymous]

      I’m pretty sure a tireless unblinking police officer has never existed. That sort of thing can make a difference; for instance, getting pulled over is something that happens to people randomly, but do it to the same person again and again without evidence and that’s police harassment. The merits of this particular case aside, I would be very suspicious of granting that whatever a cop is permitted to do, an electronic device should be accepted to do.

      • [Ugly Canuck]

        Anon # 20: Police pulling motorists over “randomly” is in fact unconstitutional in my country: other than specific statutory exceptions for alcohol-detection roadblocks (during which police pull everybody, but everybody, who passes by over for a chat), they have to have a reasonable suspicion of illegal activity, or to have observed something about the vehicle or its operation contrary to Regulation or Law, before they can lawfully pull the vehicle over. (OTOH, possession of any radar detection equipment in your vehicle is simply illegal in Canada.)
        But AFAIK warrants are only required Stateside for searches by the Constitution (4th Amendment, IIRC), and by Acts of Congress (for wiretaps), right?
        This GPS tracker is no “search”, and it’s no
        “wiretap”: and the Courts are not there to tell the police how to do their jobs. Never have been.
        In fact, from what I can see, the Courts only do so (and reluctantly at that) when politicians don’t reign in the cops themselves by Regulation (which is part of the elected Legislature’s essential job), or indeed when politicians actively encourage them to abuse the rights of the citizenry by the passing of unconstitutional (or even just plain bad, ill-thought-out and unjust) laws.

        If you want better cops, then work to elect better Legislators to manage the Police Forces better, and to pass better laws.
        The Courts IMHO ought only to get involved in knocking or stopping or controlling police action(s) if the politicians have not been doing their job properly, and have thus failed to adequately protect the citizen’s constitutional rights.

        But the fault, if fault there be, must lie with the elected politicians. The Police can only follow their orders; the courts can only partially correct their mistakes.
        And it is we the public who can put them out – or into – Office: so whose “fault” are bad cops, bad decisions by the Courts, or bad laws, really?
        So…if this decision survives any appeals, and the police use of these trackers still sucks in your opinion, then perhaps it’s time to get politically involved with the Legislature of Virginia to pass laws to specifically outlaw the police use of such trackers – and there’d be little chance of that provision being knocked out as being “unconstitutional” by the courts.

        But why would you want to tie the police’s hands like that? Isn’t crime a problem where you live?

        • [querent]

          “The Police can only follow their orders; the courts can only partially correct their mistakes.
          And it is we the public who can put them out – or into – Office: so whose “fault” are bad cops, bad decisions by the Courts, or bad laws, really?”

          Not to be inflammatory, but this seems like fantasy to me. One might say something about campaign finance, non-representative democracy, continual and not always gradual expansion of executive powers, etc.

          Then there’s Jello Biafra’s idea to make all beat cops elected by the neighborhood they work in. Why not? Most neighborhood’s I know wouldn’t mind a little extra taxation for such a thing.

          “But why would you want to tie the police’s hands like that? Isn’t crime a problem where you live?”

          In my experience, police overstepping their authority and behaving (grossly) inappropriately is a far greater problem than what most mean by “crime” (though the former is, of course, criminal).

          I’ll take petty thuggery over strong-armed tyranny any day.

          Last thought:

          “…the Courts are not there to tell the police how to do their jobs. Never have been.”

          Disagree. The fact that cops go to the courts to get warrants…the judge decides if this search is legal. If not, they tell the cops they can’t go ahead with it.

• [Church]

  Oh good. So I can go ahead with my plan to put GPS devices on police cruisers.

• [Patrick Austin]

  This decision starts with the assumption that it’s OK for police to follow you on foot. Personally, I don’t think the police should be following people without a warrant, period.

  Privacy in public has a couple of meanings. I don’t have a reasonable expectation that people aren’t watching me at any given moment, so I try not to pick my nose or scratch my ass. I *do* have an expectation that I’m not being stalked, though.

  Being followed allows the police to infer what you’re doing in private. That’s largely the point, after all. The police should have a documented reason for doing this sort of thing. Boo hoo, they have to do some extra paperwork and talk to a judge just because we don’t want to live in a police state!

  The biggest problem with this is that it paves the way for *massive* surveillance efforts that begin to reveal patterns that would be invisible to human eyes. If you’ve got 10,000,000 people being electronically followed, you’re be able to see that bob’s activities somehow statistically correlate with jerry’s, and since we know jerry gives money to palestine, we can assume that bob is a secret muslim sympathizer. Bring him in for questioning!

  Oh, and wtf happens when I park in my garage? Does the tracking device stop tracking once I’m in private?

• [teapot]

  If I was doing something that the police may be tracking me for, I would at least have the sense to buy and install one of these:

  http://www.dealextreme.com/details.dx/sku.8758

  40 bucks for peace of mind.

  Do the cops really think they are one step ahead?

• [Anonymous]

  “The right of the people to be secure in their persons, houses, papers, and EFFECTS, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

  “Effects” is property, right?

  A car is personal property.

  Do you have the right to place objects of any kind on your neighbors personal property, even if it in public, without their permission?

  Can I now place bumperstickers on any car I want?

  Can I secretly place an GPS in someone’s jacket if they are in public?

  Can I secretly attach a surveillance camera to someone’s car?

  This is insane.

• [Anonymous]

  Wouldn’t a GPS tracker follow the same kinda of rule that cellphone location tracking follows? And if so, http://www.eff.org/deeplinks/2010/09/breaking-news-eff-location-privacy-win-courts-may

  They could kinda use the same arguement, the only dfference is this guy being an offender and this is about “without probable cause.” That part might muddy the waters a little bit, but didn’t he serve his time already -__

• [Anonymous]

  The text of the article is wrong. The court said nothing about what legal rights law enforcement should have. What it did it ruled that law enforcement has a particular right under the law. This is a very important distinction in the USA. The courts don’t offer opinions on what the law should be they make decisions on what the law is.

• [knoxblox]

  I hope some legislators are current with their own history. It’s my understanding that overstepping boundaries has sometimes resulted in revolution.

  BTW, you gotta love the Google heading for the DHS: “Department of Homeland Security | Preserving our Freedoms …”