A government attorney has argued before the U.S. Supreme Court that there should be no limits at all on police agencies attaching a GPS unit to someone’s vehicle and monitoring their movements.

The arguments came this week as the Obama administration sought to overturn an appeals court decision that found such activity violated the 4th Amendment protections against unreasonable search and seizure.

Further, such freedom for police agencies is needed so that investigators can develop “probable cause” with which they can seek search warrants and the like from judges, according to the arguments.

The case involves defendant Antoine Jones, who was convicted in 2008 for possessing and planning to distribute more than 100 pounds of cocaine after officers in the District of Columbia attached a GPS device to his Jeep and watched his travels for five weeks.

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Jones argued the actions were a warrantless surveillance and violated his Fourth Amendment rights. The appellate court agreed, but administration officials determined they would appeal to the high court hoping justices would affirm the much more casual interpretation of the idea of privacy.

“If you win this case,” said Justice Stephen Breyer, “Then there’s nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the U.S. and the difference between the monitoring and what happened in the past is memories are fallible but computers aren’t.

“If you win, you suddenly produce what sounds like ‘1984,’” he said.

Added Chief Justice John Roberts, “Your argument is you can do it. Period. It doesn’t have to be limited in any way.”

“That is correct,” said Michael Dreeben, the deputy solicitor general who argued the case.

A number of the justices expressed reservations about the government’s concept of reasonable search and seizure, but Supreme Court watchers don’t predict the result of a case by the comments made.

The decision isn’t expected for several months.

The arguments focused on just exactly what is a search, a seizure and what is reasonable. And technology found its way into the discussion, with Roberts noting that what was technologically possible today is not the same as what was available for investigators 30 years ago.

Justice Antonin Scalia said it appears that the issue of a search should consider a person’s “effects,” such as a car.

“It seems to me that when that device is installed against the will of the owner of the car on the car, that is unquestionably a trespass and thereby rendering the owner of the car not secure in his effects – the car is one of his effects – against an unreasonable search and seizure,” he said.

“Do you deny that it’s a trespass?” he asked.

Dreeben called it a “technical” trespass.

“You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?” Roberts asked.

Dreeben confirmed justices “when driving on public roadways have no greater expectation [of privacy].”

“So your answer is yes. You could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?” Robert said.

Dreeben didn’t answer directly, but noted the FBI could follow individuals if it chose.

Justice Samuel Alito noted then that it was the technology that was at issue.

“I would say most of the privacy that people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information. But with computers, it’s now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets,” he said.

“I think it’s possible now … for law enforcement to monitor people’s movements on public streets without committing a technical trespass. So how do we deal with this? Do we just say, well, nothing is changed, so that all the information that people expose to the public – is fair game. There is no search or seizure … because there isn’t a reasonable expectation of privacy.”

Justice Ruth Ginsburg noted, “The government position would mean that any of us could be monitored whenever we leave our – our homes, so the only thing secure is the home. I mean this is … the end point of your argument, that an electronic device, as long as it’s not used inside the house, is OK.”

Roberts noted that the ordinary way that investigators justify a search or seizure is through a warrant approved by a magistrate.

The government, however, wants to use GPS devices to investigate people before they have enough evidence that would justify a magistrate’s signature on a warranat.

Ginsburg noted that the case at hand had begun with a warrant, but it had expired and the government had continued its tracking of data anyway.

Sonia Sotomayor said, “What motivated the 4th Amendment historically was the disapproval, the outrage that our Founding Father experienced with general warrants that permitted police indiscriminately to investigate just on the basis of suspicion, not probable cause.”

“How is this different?” she asked.

Government attorneys admitted that the federal agencies buy thousands of the GPS units each year.

Justice Anthony Kennedy noted that if a private individual pursued such a tracking of a neighbor, there would be outrage over the invasion of privacy.

The case had attracted wide interest, and a number of friend-of-the-court briefs on behalf of groups that would be affected were filed.

“The government has argued that the ‘attachment’
of a GPS tracking device on the ‘exterior’ of the Jones’
Jeep was at most a ‘technical trespass,’ and therefore,
was neither a search nor a seizure within the meaning
of the Fourth Amendment,” said a brief filed on behalf the Gun Owners of America, Gun Owners Foundation. U.S. Justice Foundation, Institute on the Constitution, Center for Media and Democracy, Free Speech Coalition, Free Speech Defense and Education Fund, Conservative Legal Defense and Education Fund, Declaration Alliance, Restoring Liberty Action Committee, Lincoln Institute for Research and Education, Policy Analysis Center, Constitution Party National Committee and Libertarian National Committee.

The brief was assembled by Joseph W. Miller and Herbert W. Titus of the civil and human rights law offices of William J. Olson, as well as Gary Kreep of the United States Justice Foundation.

“The
government offers two reasons for its position. First,
it contends that there was no search or seizure because
Jones had ‘no reasonable expectation of privacy in the
exterior of the vehicle.’ Second, it
contends that there was no search or seizure because
the attachment did not ‘meaningfully interfere with
[Jones’] possessory interest in the vehicle.'”

But that argument posited on behalf of the federal government “utterly fails to take into account the security afforded Jones’ private property by the Fourth Amendment, as it was originally written and purposed,” the brief said. “The government demonstrates its total disregard for the historic common law foundation upon which the Fourth Amendment ban on searches and seizures is based.”

The brief continued, “It was a deliberate act that the government made
every effort to keep secret, and had Jones known about
the device, he would have removed it. According to the government’s line of reasoning,
however, a trespass is a technical one when the
trespasser’s interest is of greater importance than the
property owner’s. … Such a balancing
act elevates the flagrant trespasser over the property
owner.”

Filing a friend-of-the-court brief on behalf of the National Motorists Association was John Whitehead of the Rutherford Institute.

“We have entered a new and frightening age when advancing technology is erasing the Fourth Amendment,” said Whitehead. “Indeed, if the courts do not step in and protect against police searches and surveillance, privacy as we have known it will go the way of the graveyard.”

In asking the U.S. Supreme Court to affirm the appellate refusal to allow the monitoring, Rutherford Institute attorneys point to numerous surveillance technologies available to the government, such as GPS, drones and facial recognition, that threaten the right of citizens to be free from government monitoring.

“While this technology can serve a useful purpose in apprehending criminals,” the brief argued, “the essence of the Fourth Amendment dictates that law enforcement officials not be permitted free rein to conduct high-tech surveillance absent judicial oversight through the warranting process.”

The Gun Owners brief warned that it wasn’t just an authorization for this specific case that the government seeks..

“Rather, it strives for total
victory – a judicial declaration that the Fourth
Amendment does not ever apply to Global Positioning
System (“GPS”) monitoring, without regard for the
facts that the government committed an illegal
trespass to attach the GPS device onto private
property, and then indiscriminately monitored the
movement of the Jones vehicle, no matter the identity
of the driver, the destination of the vehicle, or the
length of time,” the brief argues.

“The
government argues that there is no need for probable
cause or even reasonable suspicion to place a tracking
device on any automobile. … The expectation of privacy rationale is deeply
problematic. If the government were to announce and
make known that it was recording all cell phone calls,
preserving copies of all e-mails, intercepting all faxes,
using cell phones to monitor conversations in a room
even when no call was in progress, and that it had
entered into an agreement with OnStar, TomTom, and
Garmin to monitor in real time the position of all cars
using that GPS equipment, one could say that no
American would have any reasonable expectation of
privacy. According to the government’s theory then,
no American would be able to claim that a Fourth
Amendment search or a seizure of those
communications or data transmissions had occurred.”


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