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GPS tracking device: Supreme Court to consider its use in following suspects

GPS tracking device was installed by FBI agents to follow a man who was convicted of a drug conspiracy charge. The Supreme Court will consider: Is a warrant needed for long-term surveillance?

By Warren Richey, Staff writer / June 27, 2011

The US Supreme Court on Monday agreed to take up a case examining whether law-enforcement officials need a court-authorized warrant before using a GPS tracking device in a vehicle to facilitate long-term, 24-hour surveillance.

At issue is whether the use of GPS tracking over an extended period of time is so intrusive upon an individual’s expectation of privacy that it first requires the approval of a neutral judge.

The issue arises in the case of Antoine Jones, who was under investigation in Washington, D.C., for allegedly conspiring to distribute large quantities of cocaine.

During the course of the investigation, police and Federal Bureau of Investigation agents used a video camera; pen register data, showing the phone numbers sent and received on the suspect’s cell phone; and a wire intercept, allowing agents to record and monitor his cellphone calls.

In addition, a federal judge authorized the agents to install and monitor a GPS tracking device on the Jeep Grand Cherokee that Mr. Jones drove. Although the judge gave the agents 10 days to install the device while the vehicle was parked within the District of Columbia, the agents took 11 days to install it and they took that action in a public parking lot in Maryland – not Washington, D.C., as the judge required.

The device can track a moving object to within 100 feet. It enabled investigators not only to keep Jones under surveillance around the clock, but also to study his daily movements for patterns.

The device helped investigators link Jones to a suspected stash house in Fort Washington, Md.

Agents eventually raided the stash house and seized 97 kilograms of powder cocaine, almost one kilogram of crack cocaine, $850,000 in cash, and equipment used to process and package narcotics.

Jones was charged with drug trafficking. A jury acquitted him of several charges and was unable to reach a verdict on the remaining drug conspiracy charge. He was retried and convicted on the conspiracy charge.

Jones was sentenced to life in prison and ordered to forfeit $1 million in drug proceeds.

On appeal, defense lawyers argued that investigators violated Jones’s Fourth Amendment rights by failing to abide by the requirements of the warrant authorizing the GPS monitoring. They also argued that installation of the device in violation of the terms of the warrant violated Jones’s rights.

The US Court of Appeals for the District of Columbia Circuit did not address the installation issue. Instead, the court focused on whether the prolonged monitoring of a GPS device violated the Fourth Amendment unless officials were acting pursuant to a court-authorized warrant.

The appeals court ruled for Jones, reversing his conviction. The court said the month-long GPS surveillance conducted in his case was significantly more intrusive than the single-journey surveillance that the Supreme Court had ruled in an earlier case did not require a warrant.

The ruling conflicts with decisions involving GPS monitoring by three other appeals courts.

The Justice Department had urged the high court to take up the Washington case.

“Unless this court intervenes, the court of appeals’ decision will curtail law enforcement’s ability to use this important investigatory tool,” wrote Solicitor General Donald Verrilli in a brief to the court. “Federal law enforcement agencies frequently use tracking devices to follow leads and tips before suspicions have ripened into probable cause and without a clear idea of how long it will take to gather useful information.”

FBI agents, Mr. Verrilli noted, were able to follow terror suspect Najibullah Zazi in his 1,800-mile drive from Denver to New York City – sometimes at speeds exceeding 100 miles per hour – with the help of a GPS tracking unit.

The justices have instructed the parties in the case to address a second question, in addition to the one about prolonged surveillance: whether the government needs a warrant before a GPS tracking device may be affixed to a vehicle to facilitate surveillance.

The court is expected to hear arguments in the case sometime in its next term, which runs from October to June.