Law on GPS tracking is difficult to follow

On May 7, an appellate court in Wisconsin decided State v. Sveum. At issue was whether the surreptitious placement of a GPS tracking device on a person’s automobile, without a warrant, and the use of the device to continually track the person’s movements is a “search” prohibited by the Fourth Amendment.

The court held reluctantly that “neither a search or seizure occurs when the police use a GPS tracking device to track a vehicle while it is visible to the general public.”

The court was “more than a little troubled by the conclusion that no Fourth Amendment search occurs when the police use a GPS device.”

That would mean “police are seemingly free to secretly track anyone’s movements with a GPS device.”

In fact, “one can even imagine a law requiring all cars to come equipped with the device so that the government can keep track of all vehicular movement in the United States.”

The court urged the Wisconsin Legislature to impose limits on the use of GPS devices. Perhaps Wisconsin legislators, some of whom likely, occasionally, exceed the speed limit, will heed that call.

Just five days later, New York’s Court of Appeals decided People v. Weaver, which involved similar use of a GPS device by police.

In a decision that can only be praised as prescient, New York State Chief Judge Jonathan Lippman observed that GPS technology makes “constant, relentless tracking of anything … not merely possible but entirely practicable.”

Beginning from the premise that New Yorkers have a constitutional “right to be let alone,” the court held that the placement of the GPS device was an unlawful search.

New Yorkers “have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge,” the decision states.

The court acknowledged the issue remains open as a matter of federal constitutional law. It based its decision on the search and seizure clause of the New York Constitution.

Lippman recognized the New York State Court of Appeals has held frequently the state’s constitution provides greater protection of our right to privacy than the Fourth Amendment.

“What we articulate today may or may not ultimately be a separate standard,” Lippman wrote. “If it is, we believe the disparity would be justified. The alternative would be to countenance an enormous unsupervised intrusion by the police agencies of government upon personal privacy.”

The Court of Appeals rejected the Sveum court’s contention that the control of GPS devices should be left to a state legislature: “[T]he gross intrusion at issue is not less cognizable as a search by reason of what the Legislature has or has not done to regulate technological surveillance.”

Dissenting, Judge Robert S. Smith argued GPS surveillance is not to be considered a “search.” Given sufficient manpower, the police personally could track a suspect in all public places, at all times. Prohibiting the use of a GPS device only makes the job of law enforcement more difficult.

But what Smith overlooks is that conducting surveillance without a warrant always is easier than conducting surveillance with a warrant.

“The point of the Fourth Amendment,” the U.S. Supreme Court wrote in Johnson v. United States in 1948, is that the decision to invade a person’s privacy should be made “by a neutral and detached magistrate instead of being judged by the officer engaged in the often competitive enterprise of ferreting out crime.”

If the Fourth Amendment doesn’t extend that rule to GPS devices, all I can say is: “I love New York.”

The Supreme Judicial Court of Massachusetts recently added a new dimension to the GPS discussion. In Commonwealth v. Cory, the court examined a statute requiring those on probation following a sex offense conviction to wear a GPS device. The court decided the statute is an unconstitutional, ex post facto law as applied to defendant Cory, whose crime was committed before the effective date of the statute.

In reaching its conclusion, the court found constant surveillance via a GPS device “burdens liberty,” becoming a form of punishment.

Three GPS cases, three different outcomes. One thing is certain: The ready availability of GPS technology will continue to present difficult questions for judges and legislators for some time to come.

Scott Forsyth is a partner in Forsyth & Forsyth in Rochester, N.Y., and serves as counsel to his local chapter of the ACLU. He may be contacted at [email protected].