Dec 142012
 December 14, 2012  Posted by  Court, Featured News, Surveillance, U.S.


Readers will recall that the Supreme Court sent the Antoine Jones  warrantless GPS surveillance case back to the District Court for the District of Columbia after ruling that 28 days of GPS surveillance and use of cell-site data held by a third party provider  was a search under the Fourth Amendment.   Unfortunately for privacy advocates, the district court just handed the Department of Justice a win by side-stepping the issue of whether a warrant was required and declaring that even if it was, the good faith exception to the exclusionary rule would apply:

On January 23, 2012, the Supreme Court vacated Antoine Jones’ conviction under 21 U.S.C. § 846 for Conspiracy to Distribute and Possess with Intent to Distribute Five Kilograms or more of Cocaine and Fifty Grams or more of Cocaine Base. United States v. Jones, 132 S. Ct. 945 (2012). In that opinion, the Supreme Court unanimously ruled that the government’s installation of a GPS device on Jones’ car and use of the device to track the car’s movement for a period of twenty-eight days constituted a Fourth Amendment search. Relying on that decision, as well as the D.C. Circuit’s opinion in this case in United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), aff’d on other grounds sub nom. United States v. Jones, 132 S. Ct. 945 (2012), defendant now moves to suppress cell-site data covering a four-month period that was obtained pursuant to three orders issued by United States Magistrate Judges of this Court in June, August, and September of 2005. (Defendant’s Motion to Suppress Cell Site Data, Mar. 29, 2012 [ECF No. 606] (“Mot.”).)

Defendant, with the support of an amici curiae brief filed by Electronic Frontier Foundation and Center for Democracy & Technology (Brief Amici Curiae in Support of Defendant Jones’ Motion to Suppress, Aug. 13, 2012 [ECF No. 644] (“Amicus Br.”)), argues that under the Fourth Amendment, the government was required to obtain a warrant based on probable cause prior to tracking Jones’ location based on cell-site data provided by a third party provider for a four-month period of time. The Court, however, need not resolve this vexing question of Fourth Amendment jurisprudence, since it concludes that the good-faith exception to the exclusionary rule applies.

The court also held that even if law enforcement had violated the Stored Communications Act, the evidence could still be used because there is no suppression remedy in the SCA:

However, this Court need not weigh in on this debate because even if a defendant could argue that the government did not comply with the SCA, all courts that have addressed the issue have held that the SCA does not provide for a suppression remedy. See, e.g., United States v. Ferguson, 508 F. Supp. 2d 7, 10 (D.D.C. 2007); United States v. Hardrick, 2012 WL 4883666, at *8 n.44 (E.D. La. Oct. 15, 2012) (collecting cases). Section 2708 of the SCA provides that “[t]he remedies and sanctions described in this chapter are the only judicial remedies and sanctions for nonconstitutional violations of this chapter.” 18 U.S.C. § 2708 (emphasis added). Elsewhere, the Act provides for civil damages, see id. §2707, and criminal penalties, see id. § 2701(b), but nowhere does it provide for the suppression of evidence. See United States v. Smith, 155 F.3d 1051, 1056 (9th Cir. 1998) (“[T]he Stored Communications Act does not provide an exclusion

You can read the opinion here.

Update and Correction: It was pointed out to me on Twitter that this really isn’t sidestepping two Fourth Amendment issues, as one is statutory.  Point taken.

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