The Lawletter Vol 35, No 12, August 26, 2011
The U.S. Supreme Court recently granted certiorari to the U.S. Court of Appeals for the District of Columbia Circuit to address the issues surrounding the Government's use of a global positioning system ("GPS") tracking device on a defendant's motor vehicle. See United States v. Maynard, 615 F.3d 544 (D.C. Cir.), rehearing en banc denied sub nom. United States v. Jones, 625 F.3d 766 (D.C. Cir. 2010), cert. granted, 2011 WL 1456728 (U.S. June 27, 2011) (Nos. 10‑1259, 10A760).
In Maynard, among other surveillance techniques used by police to investigate the defendant, who was suspected of illegal drug activity, was the covert installation, pursuant to a court order, of a GPS tracking device on the defendant's motor vehicle. There were technical violations of the court order, however. The police then used the GPS device to track the defendant's movements 24 hours a day for four weeks.
On appeal following the defendant's drug conviction, the District of Columbia Circuit, disagreeing with three other circuits, held that the use of the GPS device to track the defendant's movements was a search under the Fourth Amendment, stating:
Two considerations persuade us the information the police discovered in this case—the totality of Jones's movements over the course of a month—was not exposed to the public: First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one's movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more—sometimes a great deal more—than does the sum of its parts.
Id. at 558 (court's emphasis). The court concluded that this warrantless search required suppression of the evidence thereby obtained and the reversal of the defendant's conviction.
The Government petitioned for certiorari on the question of whether the warrantless use of the GPS device to monitor the vehicle's movements on public streets violated the Fourth Amendment. In addition to this question, the Supreme Court directed the parties to brief and argue the following question:
"Whether the government violated respondent's Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent."
Jones, 2011 WL 1456728, at *1.