Back in the Wild West days, law enforcement officers like Wyatt Earp and Bat Masterson had few tools to keep the peace. Guile and a gun on their hip were about all they possessed in the face of trouble.
Today’s officers have many more ways of tracking down and capturing the bad guys. That makes their job much easier than in days of old but also more complicated. A recent ruling by the U.S. Supreme Court may have just made modern-day law enforcement more complex.
Bear with me a moment here, and I’ll explain why.
First, you should know that the Supreme Court decision I speak of stems from the case of Antoine Jones, a nightclub owner in Washington, D.C., who was suspected of being a part of a massive cocaine-selling ring. In an effort to gather information about Jones, police slapped a GPS tracking device on his Jeep. An ingenious move in this technologically advanced day and age, you might think. Indeed, the information about Jones’ travel was used to convict him in what police called “the largest cocaine seizure in the District’s history.” Jones was sentenced to life in prison in January 2008.
But the highest court in our land has now ruled that installing that GPS tracker was an unconstitutional action, a violation of every citizen’s Fourth Amendment protection against illegal searches and seizures because no judge signed a warrant ahead of time. Justice Antonin Scalia wrote that “monitor(ing) the vehicle’s movements constitutes a ‘search,’” much like police entering your home without a warrant to see what they can find.
In addition, the unanimous decision found fault with the Washington police for leaving the GPS device in place for a full month, monitoring Jones’ trips to church, a gym, a local bar and the headquarters of a known bookie. While I’m guessing police (and the FBI, which was part of the operation) had firm evidence that pointed to Jones’ involvement in the drug operation, you have to admit it is kind of creepy to think law enforcement can secretly follow a citizen around for days on end without first convincing a judge they’ve got probable cause to do so.
An appeals court had already overturned Jones’ conviction, and the U.S. Supreme Court has now let that stand. It’s assumed but not confirmed that prosecutors will try Jones again on drug charges.
But here’s why this decision may wreak havoc in cop-shops across the land. There are nine justices of the U.S. Supreme Court, and in writing their thoughts on the Jones case I think they may have opened the door to countless challenges to technologically based police investigative techniques.
Five of the justices wrote that they are uncomfortable with the government using all sorts of modern technologies. Specifically mentioned was the data officers can gather from cell phone towers or those automatic toll booths to help prove where a suspect was at any given time.
While the Jones case focused on the narrow issue of his Jeep and a GPS system, Justice Samuel Alito wrote about other “new devices that permit the monitoring of a person’s movements” that just don’t square with what we traditionally think of as our Fourth Amendment rights to privacy.
Alito worried about the government tapping into “closed-circuit television video monitoring (that) is becoming ubiquitous,” toll collection systems that help police put a suspect at the right place at the right time, and even the apparatus on many new cars that allows roadside assistance companies to pinpoint a driver’s exact location or to find the car if it is stolen.
Justice Sonia Sotomayor correctly pointed out, “Physical intrusion is now unnecessary to many forms of surveillance.” All a police officer has to do these days is learn to tap into technology that is already in place — like cameras that record the action at banks, intersections, office hallways and many public spaces. “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit (on the computer) and the email addresses with which they correspond to their Internet service providers,” Sotomayor wrote. And so if a person gives up that information to a third party, isn’t it fair game for the cops?
Every police investigator I know would say yes.
But now that justices of the U.S. Supreme Court have raised questions about police using these technological tactics, can it be long before defense attorneys figure out ways to cast doubt on entire investigations?
I can just hear it now, “Your honor, my client’s right to privacy was violated when police learned from a search of his computer that he was buying Oxycontin online! They had no reason to know he was selling it without that illegal search!”
I’m betting that some of them with clients convicted on technologically based evidence have poured over this latest Supreme Court ruling and are already thinking about ways to appeal their cases. I hope judges everywhere are ready for them.