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Court Rules Probable-Cause Warrant Required For GPS Trackers 116

Posted by Soulskill
from the didn't-help-with-heisenberg dept.
schwit1 tips this news from Wired: "An appellate court has finally supplied an answer to an open question left dangling by the Supreme Court in 2012: Do law enforcement agencies need a probable-cause warrant to affix a GPS tracker to a target's vehicle? The justices said the government's statement 'wags the dog rather vigorously,' noting that the primary reason for a search cannot be to generate evidence for law enforcement purposes. They also noted that 'Generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.' The justices also rejected the government's argument that obtaining a warrant would impede the ability of law enforcement to investigate crimes."
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Court Rules Probable-Cause Warrant Required For GPS Trackers

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  • by Anonymous Coward on Wednesday October 23, 2013 @08:15AM (#45211033)

    Even if it would impede law enforcement's ability to investigate crimes, we must recognize that freedom is simply more important.

    • by Anonymous Coward on Wednesday October 23, 2013 @08:39AM (#45211175)

      Astonishing isn't it? Warrantless searches are, themselves crimes. LEO are saying that they need to commit crimes in order to investigate crimes. I hate Law Enforcement Officers. I respect Police Officers. There is a fundamental difference between the two. One who identifies as a Police Officer recognizes that they are to serve the public by helping to keep the peace. One who identifies as a Law Enforcement Officers proclaims himself to be a tool of the state, to enforce any dictate of the state, no matter how offensive to the concept of a free people. Law Enforcement Officers (I'm Law Enforcement, we need to get Law Enforcement here, don't defend yourself - wait for Law Enforcement) need to be publicly shamed.

      • by icebike (68054)

        Astonishing isn't it? Warrant-less searches are, themselves crimes.

        The problem is that warrant-less searches are not themselves crimes. Not in any jurisdiction I'm aware of.

        They are simply inadmissible as evidence.

        The act itself might be chargeable as breaking and entering, but in the present case, nothing was broken into, and no place was entered.
        Our constitution forbids some powers from being used by the government, but never lists any penalties.
        Consequently, things like secret tracking to discover a crime without a warrant is inadmissible, but not punishable.

        Once a pol

        • Consequently, things like secret tracking to discover a crime without a warrant is inadmissible, but not punishable.

          Evidence being inadmissable _is_ the punishment.

          • by icebike (68054)

            Until there is a prison sentence or a fine involved there is no punishment.

            If the police catch a bank robber, and merely take the money back and send him on his way, is that punishment?
            Is it a deterrence?
            Or is it just an admonition to be more clever next time?

    • Re: (Score:2, Funny)

      by interkin3tic (1469267)
      Yes, though I do have to say, if that argument gains traction, law enforcement will take a page from the net neutrality fight or citizens united and try to spin the argument. Specifically, they'll start arguing they need the "freedom" to investigate potential criminals without a warrant. And at that point they'll win because anyone with a brain will have it explode.
    • Not only more important, but compulsory under the constitution.

    • It doesn't "impede law enforcement's ability to investigate crimes". If a crime has been committed the police can obtain a warrant and legally have a GPS device attached.

      Instead, what is does is impede is law enforcement's investigations when no known crime has been committed.

    • by Jane Q. Public (1010737) on Wednesday October 23, 2013 @12:47PM (#45213691)

      "Even if it would impede law enforcement's ability to investigate crimes, we must recognize that freedom is simply more important."

      Convenience of law enforcement is NEVER justification for diminishing citizen's rights.

      The government has often tried to use this argument in the past. "If we cannot do this, it is just too hard to catch criminals." Note that this excuse can ALWAYS be argued, no matter how many powers you give the police. That makes it one of those constant pressures that must be resisted at all costs.

      ---
      "That it is better 100 guilty Persons should escape than that one innocent Person should suffer, is a Maxim that has been long and generally approved." -- Benjamin Franklin, letter to Benjamin Vaughan, March 14, 1785.

      • by icebike (68054)

        The government has often tried to use this argument in the past.

        And unfortunately, they have succeeded at it most of the time.

        There is potential for greater good in this ruling (if this court decision, which in our crazy patchwork application of the Equal Protection Clause, only applies in the Third District, is followed elsewhere.).

        It could be construed to mean that if the police need a warrant to use their GPS tracker they might also need a warrant to use MY GPS tracker (our phones).

        However, these rulings really make no sense as long as the courts continue to meekly a

    • Including that committed by law enforcement.
  • by HangingChad (677530) on Wednesday October 23, 2013 @08:16AM (#45211041) Homepage

    the primary reason for a search cannot be to generate evidence for law enforcement purposes.

    So, we don't have any evidence now so we'll attach this GPS tracker to their car and then we'll have evidence that justifies tracking their car!

    Law enforcement logic.

    • Basically.

      tl;dr You need a proper warrant to do this because its fishing for info and needs time limits.

      • Re: (Score:3, Insightful)

        by Anonymous Coward

        Now lets hope they extend that logic to the NSA fishing though our email and giving the results to law enforcement for parallel construction.

        • by Somebody Is Using My (985418) on Wednesday October 23, 2013 @09:14AM (#45211423) Homepage

          And - as importantly - let's hope NSA and the other Three-Letter-Agencies actually obey these laws.

          Unfortunately, because they so often operate in secret, it's very hard to monitor their compliance. And as we've seen repeatedly throughout the last century, they are quite willing to bend or break the law to achieve their goals.

          So while it's great that a judge has smacked down local police's ability to tag innocent civilians with warrentless-GPS trackers (whose activities have to be revealed in court), it likely does little or nothing to stop the Federal agencies from continuing to do the same.

    • by gstoddart (321705) on Wednesday October 23, 2013 @08:27AM (#45211113) Homepage

      Yes, that's exactly what they've been saying.

      "If we can't monitor you to prove you're doing something bad, we'll never be able to know".

      Law enforcement and governments have decided it's too inconvenient to follow the procedural rules which have been established, and more or less started trying to make the case for just bypassing them out of convenience.

      And, sadly, some of the courts seem stacked with people inclined to just say "well, if you're law enforcement, go ahead".

      • by IndustrialComplex (975015) on Wednesday October 23, 2013 @10:26AM (#45212081)

        The courts have long been like a Range Safety Officer who hasn't seen something go wrong in so long that they just skim the safety plans and supporting documentation.

        The problem is that at least for the Range Safety Officers, when something goes wrong, the blame immediately falls on them. With the courts, it's not often easy to know when something goes wrong, and even when you do know, blame rarely falls back on the courts.

        • by noh8rz10 (2716597)

          what is a range safety officer

          • It is the person at the gun range that enforces the rules for safe shooting. If you go to one they are basically god and you do not question them.
            • by noh8rz10 (2716597)

              i bet that the RSO needs to keep firm control when everybody around him is armed! I'd be like, what up mofo, I'm pretty sure I can use whatever ammunition I want!

              • In my experience people are very organized and polite at shooting ranges.
                • by noh8rz10 (2716597)

                  I bet it's because everybody is armed! it's like the ultimate concealed carry society. don't mess with anybody, because you never know when you'll encounter a crazy with lethal stopping power. that's what the second amendment is for. from my cold dead hands!

              • i bet that the RSO needs to keep firm control when everybody around him is armed! I'd be like, what up mofo, I'm pretty sure I can use whatever ammunition I want!

                He can ask you to leave. If you don't leave, it's called "armed trespass". In Florida, that's up to five years in jail. 10 years automatically if you point the gun at someone.

                • by noh8rz10 (2716597)

                  In Florida, that's up to five years in jail. 10 years automatically if you point the gun at someone.

                  and yet it's legal to shoot people dead in the street if they "make you feel threatened"?? Only in Florida!

          • what is a range safety officer

            It's a term used for the person who is ultimately responsible for maximizing safety at a 'range'. While others have pointed out that a Range Safety Officer is often the person responsible for safety at a shooting range, it is a general term and I'm most familiar with them at Test Ranges for government equipment.

            This is in general, and sometimes the responsibilities are split to different roles, but in general: In order to maximize safety, it is the Range Safety Officer (or similar term) who has ultimate

      • The entire point of the fourth amendment was to shoot down the exact logic law enforcement (and the NSA) use for this kind of stuff..

        • by Desler (1608317)

          But the Fourth Amendment only helps criminals and terrorists. Why are you on the side of criminals and terrorists, Citizen?

          • I'm on the side that I'm on because the criminals and terrorists that scare me the most are the ones that work in my own government.

          • Why are you on the side of criminals and terrorists, Citizen?

            I try to support my elected officials, whenever it is sane to do so.

    • the primary reason for a search cannot be to generate evidence for law enforcement purposes.

      So, we don't have any evidence now so we'll attach this GPS tracker to their car and then we'll have evidence that justifies tracking their car!

      Law enforcement logic.

      And like most things, this is not new. It is COINTELPRO all over again. It is substantially identical, other than the particular gadget in question.

    • by bill_mcgonigle (4333) * on Wednesday October 23, 2013 @09:17AM (#45211449) Homepage Journal

      Law enforcement logic.

      "These guys have it coming".

      To even be in law enforcement, you have to drink vigorously from the cup of ends-justify-the-means.

      • by noh8rz10 (2716597)

        To even be in law enforcement, you have to drink vigorously from the cup of ends-justify-the-means.

        and booze.

  • by Anonymous Coward

    Obtaining a warrant would impede our ability to conduct warrantless searches!

  • by Anonymous Coward on Wednesday October 23, 2013 @08:18AM (#45211051)
    As a GPS tracker is simply a proxy for a person hiding in the car and tagging along for the ride, writing down everyplace you go, the answer to this question has always been pretty self-evident to me. You need a warrant.
    • As a GPS tracker is simply a proxy for a person hiding in the car and tagging along for the ride, writing down everyplace you go, the answer to this question has always been pretty self-evident to me. You need a warrant.

      If that were true then no warrant would be needed, as following a person is not illegal barring intimidation/harassment. The major difference is that they are affixing an object to a person's property without the owner's consent in order to track them. Putting a tracking or listening device on a person's property constitutes a search and requires a warrant.

      • The police tailing a person without a warrant isn't illegal, but them breaking into someone's car and hiding in the back seat to do so (with no warrant) would be illegal. If the tracking device could follow the car without actually being affixed to it in some way, it would likely be completely legal to do this with no warrant. I don't see little "miniature drone cars" happening anytime soon, though.

        • If a police officer is following a car and it goes onto private property he needs a search warrant (or permission) to follow. I see no reason to give a GPS tracker special dispensation around that issue.
          • Good point. I was assuming that the person was travelling on public property or was visible from public property. If the person gets in their car (parked on a short driveway visible from the street), drives (via public roads) to another location and parks in a location on or visible from public property, there is no problem with police in an unmarked vehicle following them. The second it goes onto private property and they need to enter said property to keep their target in sight, though, a warrant is ne

        • I see a new market for Google self driving cars.
    • by barlevg (2111272)
      Yeah, but how about just simply tailing the suspect? No need to be in the backseat to monitor wherever the person goes. Do you need a warrant for that? Honestly asking--I'm not up on police surveillance law.
      • by Anonymous Coward

        The police have the right to tail a suspect. So if they want a GPS track of the suspect vehicle then they should attach a GPS tracker to the police vehicle and follow the suspect around. No need for a warrant.

        The police do not have the right to install a device in or on your vehicle without a warrant.

        Big freaking difference.

      • by jxander (2605655)

        Tailing a person is perfectly legal. There are two main differences. If the tailee goes into his/her house or other private property, the cop doesn't get to follow. GPS would still be attached.

        Also, tailing people manually hits up against some serious logistical problems as it expands. You'd need at least 2 or 3 cops for round the clock surveillance of one person. Trying to track every single movement of any significant number of people starts to get cost prohibitive very quickly, unless you have a s

        • by barlevg (2111272)
          One slight nitpick: this is for GPS trackers affixed to VEHICLES, so GPS doesn't actually get to come in.

          Another fourth amendment question: I know you need a warrant to wiretap a person's phone (at least, you're supposed to need one), but do you need one to listen in using a parabolic microphone?
          • by jxander (2605655)

            I don't know about you, but I park my vehicle in my garage. That's inside.

            Most apartment parking lots count as private property, too (owned by the landlord or parent company)

            IANAL, and I don't have a legal answer for the microphone question, but I'd wager it would fall under "reasonable expectation of privacy" established in Katz v. United States. If I'm sitting in a public park, or at a restaurant, at the beach, etc ... LEOs would be able to use high powered recording equipment to monitor my conversati

    • by bitt3n (941736)

      As a GPS tracker is simply a proxy for a person hiding in the car and tagging along for the ride, writing down everyplace you go, the answer to this question has always been pretty self-evident to me. You need a warrant.

      It's not that simple, because you could achieve almost exactly the same result as a GPS with a helicopter and a large enough fleet of undercover cars. It seems the argument needs to be made on the grounds that it is not in the interests of the public if the police's job becomes too easy. This argument is necessary if one also wants to argue against the prevalence of electronic means of reading license plates. Reading a single plate with an electronic device is not substantively different from a cop reading

      • And to that point, I wouldn't mind if they can read thousands of them daily, so long as the record of it and the location of the car is not used for any other purpose beyond the immediate -- checking registration, reports of it being stolen, or involved in an active crime. Once it is determined that it is not, the records must be eliminated.

        • by bitt3n (941736)

          so long as the record of it and the location of the car is not used for any other purpose beyond the immediate -- checking registration, reports of it being stolen, or involved in an active crime.

          IIRC, they're already storing the data in some places, and there have been fights about how long they can hold it.

  • Warrantless GPS data should be considered testimony for real privacy to start seeping back into the "justice" system. The same should be true for devices which track your miles traveled per trip or your cell phone location information or so-called "metadata" about who you call or where you swipe your credit card. If the cops want to see it, there must be a warrant and you must be provided with a copy of that warrant. I see no problem with this. I also think the "it makes it hard to investigate" line is ridi
  • by Sockatume (732728) on Wednesday October 23, 2013 @08:22AM (#45211079)

    All oversight impedes the one's ability to do one's job. The whole point is that it's a trade-off against the costs of the lack of oversight. Other things that impede law enforcement:

    1) Need to actually prove someone committed a crime
    2) Restrictions on tasering people "because they look a bit crimey"
    3) Not permitted to use seized drugs to hold a "pot brownie fundraiser"

  • (it's a rather large fly).
  • To little to late (Score:4, Interesting)

    by DarkOx (621550) on Wednesday October 23, 2013 @08:24AM (#45211091) Journal

    They now have cameras, character recognition and databases that can track you pretty much anywhere.

    What we NEED is a court to rule that data-mining constitutes an ersatz search and is protected.

    • by Spamalope (91802)

      They now have cameras, character recognition and databases that can track you pretty much anywhere.

      What we NEED is a court to rule that data-mining constitutes an ersatz search and is protected.

      Any Onstar like system tracks you too, as well as being a bug (the mike can be remotely turned on) and a remote car control. Modern cell phones are all remote tracking, logging, bug devices. Several states are moving to make vehicle registration require location tracking, with permanent warrant-less tracking. (You can trust us! Really! Not like every other time this time, we promise Charlie Brown!)

      • by bjdevil66 (583941)

        Several states are moving to make vehicle registration require location tracking, with permanent warrant-less tracking.

        I don't think that everyone would just roll over for this yet. Yeah, 99% of the people would, but there are enough people (who would be branded as "terrorists") out there who would say no.

  • Do we not have a direct analogy between this ruling and warrantless examination of Internet usage - as does the NSA & others ?

    So does this mean that the NSA needs a court order before it can collect any Internet use on anyone ? Ie the end to their current ''vacuum up everything'' way of doing things ?

    • Do we not have a direct analogy between this ruling and warrantless examination of Internet usage - as does the NSA & others ?

      So does this mean that the NSA needs a court order before it can collect any Internet use on anyone ? Ie the end to their current ''vacuum up everything'' way of doing things ?

      The NSA has a valid court order. The problem is that the order was issued in complete secrecy, by a secret, non-adversarial court whose actions can never be challenged by the innocent but insignificant citizens whose privacy was actually violated, because, uh... Well, that's a secret.

      And no, this is not something from a Kafka novel, it's the system we actually have here in the USA, brought to you courtesy of Osama Bin Laden and a bunch of spineless politicians on both sides of the aisle.

  • by realsilly (186931) on Wednesday October 23, 2013 @08:34AM (#45211155)

    .... has returned to someone in the Judicial system.

    It's ridiculous that the government bitches about getting a warrant. GPS is more invasive in my opinion. Because if you are a person of interest and the Govt, feels that you should be tracked, then they slap that GPS unit on your vehicle and they will step onto your property to do it in many cases. So in the event that they're not parked outside your house watching your every move, they don't always know who's driving that vehicle. So in essence, if you lent your car to someone that is NOT a person of interest the government is now tracking the wrong person and violating his/her rights.

    As least with a warrant, the request is on papers and the government could back up their tracking with that warrant should the 'person not of interest' have balls big enough to go after the government.

    • Who needs GPS when you have license plate tracking cameras?

      I'm an opponent of license plates these days specifically because these devices require no warrants to store, track, and otherwise use that data. It was one thing when they had to manually read a plate, but these systems go too far.

  • if we didnt have FISA courts with their 2% rate of warrant rejection, im sure this ruling would have serious repercussions for law enforcement agencies across the nation.

    I guess this means we'd better order more ink for next year. lord knows we cant have a lack of well lubricated rubber stamps in the court leading to 'liberty' and 'freedom' again.
  • The answer was obvious. We need a way to fast track issues like this to the SCOTUS and force them to rule on them. How many people sat in prison for years due to this crooked process while law enforcement stalled it in court?

  • by Bob9113 (14996) on Wednesday October 23, 2013 @09:33AM (#45211555) Homepage

    To me, the following bits from the article really strike to the heart of the matter:

    The government also argued that if officers were required to obtain a warrant and have probable cause prior to executing a GPS search, "officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices."

    The justices said the government's statement "wags the dog rather vigorously," noting that the primary reason for a search cannot be to generate evidence for law enforcement purposes. They also noted that "Generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant."

    That seems to cast a dark shadow on the practice of NSA intercepts being used by the DEA to establish probable cause, followed by parallel construction [wikipedia.org] of that probable cause.

  • Read this article. Still looks like a fishing expedition to me, regardless of what he posted. Racial profiling? http://www.wired.com/threatlevel/2010/10/fbi-tracking-device/ [wired.com]
  • The Third Circuit Court of Appeals gave a resounding yes to that question today in a 2 to 1 decision.

    I wonder what the arguments were on the other side. Especially in light of this:

    the Supreme Court justices ruled in January 2012 that law enforcement’s installation of a GPS device on a target’s vehicle constituted a search under the Fourth Amendment. The justices declined to rule at the time, however, on whether such a search was unreasonable and therefore required a warrant.

    I suppose one justice thought that even though it was a search, it was not unreasonable.

    So there is still wiggle room here for the police. Perhaps other jurisdictions will decide differently. Or perhaps, the search is reasonable in some cases but not others.

    • So there is still wiggle room here for the police. Perhaps other jurisdictions will decide differently. Or perhaps, the search is reasonable in some cases but not others.

      A search _is_ reasonable in some cases and not in others. The police can sometimes search your home without a warrant (if there is a crime in progress or similar), so obviously they can sometimes track your car without a warrant. It's just a rare situation.

  • So now, instead of getting a pesky GPS warrant on your car, they'll just ask the phone companies for the metadata (via subpoena) for your GPS location of your cell phone, which you're probably carrying, as this is just business data and you have no right to the expectation of privacy for it.
  • They are doing this now because soon there will be well enough established drone networks that will make attaching something to the vehicle irrelevant.

    No need for a search warrant if your movements are in plain sight in public. They don't need a warrant to follow you in a car either.

    With good cameras, and some good processing, they'll be able to spot, track, and follow many vehicles at once with an automated system. Parts of it will be on the ground with plate readers and cameras, and parts of it will b

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