Tracking Knotts: How GPS Technology Is Influencing Traditional Fourth Amendment Jurisprudence
McGrath, Patrick B., The Journal of High Technology Law
Cite as 12 J. High Tech. L. 231 (2011)
[Privacy is] "the most comprehensive of rights and the right most valued by civilized men."
--Justice Louis Brandeis, Olmstead v. United States, 1928 (1)
"You have zero privacy ... Get over it."
--Scott McNeal, CEO, Sun Microsystems, 1999 (2)
The Fourth Amendment has been described as a mess, "... 'a mass of contradictions and obscurities that has ensnared the 'Brethren' in such a way that every effort to extract themselves only finds them more profoundly stuck.'" (3) Among the problems associated with the Fourth Amendment is the Supreme Court's difficulty in applying the doctrine to the modern world. (4) In its quest to reinterpret eighteenth century jurisprudence to be applicable to twenty-first century innovation, the Court confronts a constant barrage of new technology. (5) While the law develops in the courtroom, law enforcement is taking advantage of the newest and most sophisticated technology in their investigations. (6) It falls to the Court to determine when unsupervised use of this technology violates the rights of the people. (7)
One of the newest tools in the law enforcement repertoire is Global Positioning System (GPS) tracking devices. (8) Police often attach these devices to a suspect's car in lieu of visual surveillance. (9) However, the issue has been raised about whether these devices can, and should, be used without first obtaining a judicial warrant. (10) On one side of the debate, law enforcement officials maintain that requiring a warrant for GPS tracking devices will create practical problems in criminal investigations, and may ultimately call into question traditional surveillance techniques that have never required a warrant in the past. (11) on the other hand, civil rights advocates argue that warrantless surveillance through GPS enhances law enforcement to a point that invades privacy and constitutes a search and seizure under the Fourth Amendment, violating personal liberties and constitutional rights. (12)
This note discusses the implications of the ongoing GPS tracking debate, attempts to demonstrate why allowing law enforcement to conduct warrantless GPS tracking will severely infringe on the publics' rights, and outlines potential judicial remedies. Section II begins with a legal history of relevant to warrantless GPS tracking issues. Section II, therefore, provides a general historical background on Fourth Amendment jurisprudence and outlines case law that is fundamental to understanding the warrantless tracking debate. Section II also provides a brief technological background by highlighting the evolution of tracking technology and its application in law enforcement. Section III provides an outline of the most recent cases on the topic, focusing on the federal courts' different approaches to warrantless GPS tracking. Section IV analyzes the strengths and weaknesses of the courts' different approaches, highlights a number of factors courts should consider, and proposes a solution to the GPS debate based on reasonable suspicion. Section V offers a final thought on the status of warrantless GPS tracking in our society.
A. Relevant Law
i. Development of Fourth Amendment Law
Ratified in 1791, the Fourth Amendment was proposed by James Madison in order to ensure the security "of the people ... in their persons, houses, papers, and ... [effects], from all unreasonable searches and seizures...." (13) For the first century and a half after ratification the Fourth Amendment was a primarily dormant doctrine. (14) The earliest Fourth Amendment cases did not arise before the Supreme Court until 1855 and 1877, but it wasn't until 1886 that the Court heard the first Fourth Amendment case of legal significance. (15) In total, the Court heard only five Fourth Amendment cases in the nineteenth century. (16) Originally, the Bill of Rights applied only to the Federal Government, but not the states. …