The United States Supreme Court recently issued a new Fourth Amendment ruling, in which the Court upheld the exclusion of GPS evidence against an alleged drug trafficker. The basis for the Court's decision was that the federal government trespassed upon the defendant's property rights by installing a GPS monitor on the defendant's vehicle without a warrant. In the short term, the decision has the potential to impact prosecutions in South Florida, as it provides an additional theory through which Florida defense attorney's may attempt to suppress evidence. On the other hand, the decision does not touch on whether the GPS monitoring of a vehicle violates an individual's "reasonable expectation of privacy." Thus, the decision falls far short of creating a new, protected privacy interest.
It was the Court's failure to address this issue that resulted in an interesting 5-4 split among the justices. While all 9 justices agreed on the result of the case, the Court split 5-4 as to the legal basis for the decision. Interestingly, the 5-4 split didn't reflect the typical divide between conservatives and liberals. Scalia, Roberts, Kennedy, Thomas, and Sotomayor voted in the majority, while Alito, Breyer, Ginsburg, and Kagan voted as a concurring minority. Justice Alito wrote on behalf of the minority, urging the Court to recognize a broader privacy interest against the use of prolonged GPS monitoring. Although Justice Scalia left open the possibility that prolonged GPS monitoring may violate an individual's "reasonable expectation of privacy," he and the majority decided the case on the more narrow grounds that law enforcement officers trespassed upon the defendant's property interests when they attached the GPS monitor to the bottom of the defendant's vehicle.
In what could only have happened in sparring legal opinions between Scalia and Alito, the justices debated the likelihood of 18th century "constables" stowing away in horse-drawn coaches, where they could secretly record the movements of revolutionary-era criminal defendants. While Justice Scalia accepted the possibility of such an occurrence, Justice Alito wrote: "this would have required either a gigantic coach, a very tiny constable, or both--not to mention a constable with incredible fortitude and patience."
While the above scenario and debate is somewhat silly (and "irrelevant," in the words of Scalia), it highlights the evolving technology of criminal investigations, and the potential constitutional limitations to the use of such technology. In its opinion, however, the Court "punted" on this issue, which leaves unanswered the pressing concern of whether prolonged GPS monitoring violates an individual's Fourth Amendment rights.
For instance, what if the government electronically tracked the movement of a suspect, without a court order, and without trespassing on an individual's property? With current GPS technology, as well as with upcoming imaging technology and the advent of data-mining, it is not far-fetched to imagine the federal government capable of collecting massive amounts of data on individuals, which could reveal an individual's personal secrets.
For example, if the government could employ prolonged GPS tracking of an individual without court order, the government could amass information regarding an individual's private life, including an individual's sexual, business, political, and/or religious life. Utilizing this technology, the government could track how often an individual goes to church; travels to a gay bar; what business contacts an individual engages with; or whether an individual goes home to his/her family after work or goes to a motel with a colleague of the opposite sex. Essentially, the ability of the government to track every movement of any individual without court order would provide the government with the power to invisibly look over the shoulder of every American citizen.
There is little doubt that the Court will eventually have to address the constitutional implications of new surveillance technologies. Until then, law enforcement will continue to develop and use new sophisticated techniques to track the movements of suspected wrongdoers. However, the days of attaching GPS devices without a warrant are over. Although the Supreme Court's decision could have gone further, it nevertheless provides an additional argument for defense attorneys to move to suppress evidence that was collected in a manner inconsistent with the Constitution.