Priscilla J. Smith, Nabiha Syed, David Thaw & Albert Wong, Tuesday, 11 October 2011:
Federal and state law enforcement officials throughout the nation are currently using Global Positioning System (GPS) technology for automated, prolonged surveillance without obtaining warrants. As a result, cases are proliferating in which criminal defendants are challenging law enforcement’s warrantless uses of GPS surveillance technology, and courts are looking for direction from the Supreme Court. Most recently, a split has emerged between the Ninth and D.C. Circuit Courts of Appeal on the issue. In United States v. Pineda-Moreno, the Ninth Circuit relied on United States v. Knotts—which approved the limited use of beeper technology without a warrant—to uphold warrantless use of GPS surveillance technology. However, in United States v. Maynard, the D.C. Circuit held that warrants are required for law enforcement use of GPS tracking devices. In distinguishing Knotts, the D.C. Circuit pointed to the vast differences between the relatively primitive beeper technology used almost thirty years ago and the unprecedented power of GPS surveillance technology used today. The Seventh Circuit Court of Appeals and various state courts are similarly divided. In light of this confusion, the Supreme Court has recently agreed to review the issue, granting certiorari from the decision of the D.C. Circuit in Maynard and leaving the Pineda-Moreno petition in a holding pattern. On November 8, the Supreme Court will hold oral arguments in the case, which was docketed under the new name United States v. Jones.
The Supreme Court’s Fourth Amendment doctrine, including its cases evaluating new surveillance technologies, has always been informed by one of the Amendment’s animating principles: its mandate to prevent abuse of police power. While the Court has not always articulated this theory of the Fourth Amendment as clearly as it could have, a careful review of the case law reveals a concern about abuse and “a too permeating police surveillance.” This reading demands that, in any review of new surveillance technology, courts must evaluate the technology’s potential for abuse.