Do Police Need A Warrant In Order To Use Global Positioning System Technology?
A Recent Washington Court Said Yes, But It's Wrong

By BARTON ARONSON

Wednesday, Sep. 17, 2003

Last week, the Supreme Court of Washington became one of the first states to address whether, when the police use Global Positioning System (GPS) technology to track a suspect's movements, they need a warrant to do so. The Court held the answer was yes.

Like many search and seizure cases, State v. Jackson is an awkward attempt to fit new law enforcement techniques into old jurisprudential boxes. This time, the Court would have been better off paying more attention to the boxes: in finding that the police did need a warrant, the court seem transfixed by the novelty of the technological to the exclusion of the rights it was supposed to be protecting.

The Facts of Jackson

In October 1999, William Jackson reported that his nine-year-old daughter was missing from his home. Suspicion quickly focused on Jackson himself, but the police lacked the evidence for an arrest. They did, however, have enough for warrants to search Jackson's vehicles, which were duly impounded by the Spokane police.

Before returning Jackson's 1995 Ford pickup, the police sought and were granted a warrant to attach a Global Positioning System (GPS) device to the truck. The device allowed the police to track Jackson's movements without any effort greater than logging onto their computers and downloading the GPS device's data stream. They returned the truck to Jackson, but did not tell him that the devices had been installed.

The first warrant was for ten days, which the judge extended for ten more. During that time, the police used the GPS device to track Jackson's vehicle to two remote locations and a storage unit. At one of those remote locations, the police found plastic bags, duct tape, and hair and blood samples. At the other, they found Jackson's daughter buried in a shallow grave.

Jackson was convicted of first-degree murder.

Washington Law on Search and Seizure

On appeal, Jackson argued that the police did not have probable cause for the warrant. In so doing, he invoked a provision of the Washington state constitution that differs from - and is more protective of privacy than - the Fourth Amendment of the U.S. Constitution. An intermediate court ruled that the police didn't need a warrant for the GPS device, and so never decided whether there was probable cause; the Washington Supreme Court ruled that the police did, in fact, need the warrant, but ruled that it was supported by probable cause.

While Washington is one of the first states to address this issue, it won't be the last. And apart from the precise technology at issue, the dispute between the state's appellate courts illustrates two different approaches to the intersection of technological innovation and the law of search and seizure.

The Law of Search and Seizure and the Definition of a "Search"

There is no "right to privacy" in the U.S. Constitution - at least, not in so many words. But the Fourth Amendment, which forbids "unreasonable searches and seizures," has long been understood to protect our reasonable expectations of privacy by requiring law enforcement, before violating those expectations and trenching on that privacy, to get a warrant. By interposing a neutral party - a judge - between law enforcement and the rest of us, the warrant requirement is supposed to ensure public order while preventing abuses of executive power.

But the police only need a warrant if they conduct a "search." And as the law stands, there is no search if all the police do is see what you, voluntarily, expose to public viewing. So, if you keep your collection of roach clips and rolling papers safely under lock and key indoors, the police would need a warrant to go into your home and look for it. But if, having decided to kick the habit, you hold a sale in your front yard and put your drug paraphernalia in bins marked "$1," $2," and so on, and the police walk by to inspect the merchandise, they've conducted no "search" in finding your stuff.

All of William Jackson's movements that were tracked by the GPS device were "public," in the sense that other people could have watched them without entering private homes or property. If the police had decided to follow Jackson in their cruisers as he drove to his storage locker and his daughter's grave, he could not have forbidden the police from following him or demanded to see a warrant. He drove on public roads, and went to public - albeit remote - places.

Changing Technology and Changing Search and Seizure Law

But the police didn't just follow Jackson - they tracked him using relatively new and sophisticated technology. Most people are vaguely aware of GPS technology, but it's probably fair to say Jackson, like almost all of the rest of us, has not pondered its uses in monitoring the movements of crime suspects. It would not be surprising to learn that the notion that his truck had a homing device never entered Jackson's mind.

Search and seizure law has always accounted for technological innovations. If you "hide" your drug paraphernalia by putting it on your front door step at night, you could, conceivably, tell the judge that you reasonably expected privacy because, after all, it was dark and no one could see it. But if the police walk by and shine a flashlight on your stuff, the judge is likely to find they conducted no "search" at all.

While the opinions in this area are by no means a model of consistency, the mantra for the courts is that technology may enhance an officer's senses without resulting in a search. But if the technology intrudes where the officer's senses could never go (think of a wiretap), then the officer will need a warrant.

Old Categories, New Technologies, and the Conviction of William Jackson

William Jackson's case is one of many at the intersection where our expectations of privacy meet new technologies. On the one hand, everything Jackson did was, in one sense, "public." On the other, the police detected his movements using unusual and sophisticated means, and the court was clearly troubled by the complete picture of Jackson's life that the GPS device could generate by comprehensively tracking his movements. Finally, the Court saw this distinction: "the GPS device does not merely augment the officers' senses, but rather provides a technological substitute for traditional visual tracking."

How to resolve the tension? The answer will vary from case to case, but here, the state supreme court seems to have fixated on the technology and forgotten the interests involved.

Start with the notion that there is no question, none at all, that the police can follow your movements in public. They can do so, moreover, while trying to conceal their identity, by driving in unmarked cars, not following too closely, and regularly switching vehicles. And they can certainly do it for a couple of weeks before you'd have any legal right to complain. If the sheriff's office had tracked William Jackson this way, his appeal would have merited a single paragraph from the courts of appeals rather than two lengthy opinions.

Jackson, of course, hoped his movements would go undetected - that's why he buried his daughter in the woods rather than on his own property or some more public place. But he had no reasonable expectation of privacy in the woods. He didn't own the property and could not prevent others from following him there or finding it on their own. Whatever his hopes, they were not legitimate expectations in the sense that he could do anything to ensure the privacy he craved.

All of this focuses on Jackson's expectations, because that's what matters. The state supreme court forgot that when it noted that "it is unlikely that the sheriff's department could have successfully maintained uninterrupted 24-hour surveillance." Predicating our expectations on the limited resources of law enforcement is a bad idea, for several reasons.

The police have nearly unfettered discretion in deciding how to use their resources. Some crimes will have higher priorities than others; here, for example, Jackson's daughter was missing, and therefore possibly still alive. What expectations would be "reasonable" under these circumstances? Would the result be different if the GPS device had led the police to Jackson's daughter's body in the first 24 hours?

Moreover, the supreme court just might be wrong about whether the police could pull this off. Sometimes the police do try to follow people for days or weeks on end, and sometimes they succeed. Sometimes the police are in the right place at the right time; often they are not.

But since most crime will go undetected most of the time, it is difficult to see how this scrutiny on police resources will lead to intelligible rules for determining when the police have conducted a search and when they have not. Fortunately, guessing about what the police can or cannot do - a fruitless inquiry - is not how we protect privacy rights. The state supreme court should have stayed focused on what mattered: Jackson's expectations.

None of this is intended to take lightly the extraordinary power that police have to use - and abuse - in the pursuit of crime. And there is nothing wrong, in principle, with a court saying that when technologies race ahead of our expectations, the police may need a warrant while we get used to the notion - if we get used to the notion - that we've lost a little bit more privacy. But the word "technology" is not to be incanted by courts as a reason for abandoning basic principles of search and seizure law. And one of those principles is that, as a matter of law, you cannot hide in plain sight.


Barton Aronson is an attorney in Washington, D.C.. Prior to that, he was a prosecutor in Washington, D.C., and an Assistant District Attorney in Massachusetts. The opinions expressed in this article are his own.

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