Jul 172012
 July 17, 2012  Posted by  Court, Surveillance, U.S.

Andrew Crocker writes:

In 2010, the FBI attached a GPS device to the car of a man named Fred Robinson and continuously monitored his whereabouts for nearly two months—all without getting a warrant. Now Robinson is on trial, and on Friday, the ACLU and its affiliate, the ACLU of Eastern Missouri, filed an amicus brief in his case, United States v. Robinson, which raises important Fourth Amendment issues about police use of GPS trackers for surveillance.

Although the Supreme Court addressed this subject in its landmark decision in United States v. Jones earlier this year, the government still maintains that GPS tracking without a warrant is constitutional.

The problem (as we discussed here) is that Jones did not fully settle the warrant issue. Interpreting the Fourth Amendment’s prohibition against “unreasonable searches and seizures,” the Supreme Court has developed a two-part inquiry to determine the constitutionality of surveillance practices. First, a court must determine whether the practice constitutes a “search” at all. This is answered byJones; all nine justices unanimously held that the GPS tracking at issue was a search covered by the Fourth Amendment.

However, Jones did not reach the second half of the question: whether GPS tracking is an unreasonable search when conducted without a judicial warrant. In our Robinson brief, we argue that especially for invasive searches like GPS tracking, the lack of a warrant should be fatal.

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