Boiled down, constitutional rights
govern how far your government can intrude on your business. For
example, both our state and federal constitutions prohibit
unreasonable searches and seizures. (This has been covered in
earlier columns.) As our daily lives get more complicated, mixed-up,
and electronic, however, it gets harder and harder to figure out what
is “reasonable” and what is not.
This was the problem in United
States v. Jones, handed down by the Supreme Court on
January 23, 2012. Supreme Court decisions are the last word on
constitutional issues, so when they rule on basic rights questions,
those rulings can have a big impact on our daily lives.
In this case Jones was a drug dealer.
Police suspected him, but could not prove it yet. So they put a GPS
tracking device on Jones' car. They did not get a valid warrant
first. They tracked him, 24 hours a day, 7 days a week, for four
weeks. By doing this, they were able to connect him to other drug
dealers, and over 90 kilos of cocaine. Eventually, that GPS evidence
made it possible for the government to convict him. Jones was
sentenced to life in prison.
Jones appealed. He argued that
attaching a GPS unit to his car, and tracking him for 28 straight
days, without a warrant, was not only creepy, but was also an
unreasonable search. The government argued that this was not a
search. The car's movements were not private. Anyone could have
watched him drive around on public roads. This fact did not change
simply because police used a GPS device instead of having a live
officer do it.
The government's argument was, on the whole,
pretty good. For the last several decades, unreasonable search cases
like this turned on whether police violated a person's "reasonable
expectations of privacy." The rule said that if there was no
intrusion on your reasonable expectations of privacy, there was no
search, and no constitutional violation. Although it would be creepy
to follow someone around for 28 days, driving down the highway is not
exactly a private act.
The Supreme Court, however, took a
deeper look at the question. It went back to our early
understandings of search and seizure law, closer to the time when the
constitution was written. Back then, most people were focused on
property rights, not privacy rights. In those cases, searches were
considered illegal when police trespassed on private property. Since
the constitution itself has not been changed, the Court concluded,
those property-based rulings still applied.
So what does this
mean for GPS units? GPS units did not exist when the constitution
was written, so the Court got a little creative. It reasoned that,
200 years ago, police might have secretly hidden an officer inside
your carriage and recorded your movements that way. This intrusion
would surely have been considered an illegal search. The same would
be true of a GPS unit being stashed in your car.
Because of this, the Court held that
the use of a GPS in Jones' case was a search, and his conviction was
overturned. Ultimately, the Court ruled, TWO ways that police could
conduct an unreasonable search. They can either violate reasonable
expectations of privacy, or trespass on private property. If police
do either without a warrant, the results of their searches, and the
convictions they obtain as a result, can be thrown out.
foregoing column is written for informational purposes only. It does
not constitute legal advice. Article 6 Section 11 of the South
Dakota Constitution, and the Federal Fourth Amendment cover illegal
searches and seizures. N. Bob Pesall can be reached at P.O. Box 23,
Flandreau, SD 57028, by telephone at (605) 573-0274, or on the web at
what does that mean for us here in South Dakota? My local police
tell me that GPS units are expensive. Larger cities and federal
officers may have them, but until prices go down, most police will
have to do their jobs the old-fashioned way, with human beings. This
is probably for the best. Either way, we can be comforted to know
that our constitutions still protect our property, even in this
modern electronic age.