The Fourth Amendment and GPS Surveillance: DC Circuit
By Tim Feulner
On November 19, 2010, the District of Columbia Circuit Court of Appeals denied the United States government’s petition for a rehearing en banc in United States v. Antoine Jones. In doing so, the D.C. Circuit refused to overturn an earlier panel decision finding that the use of a GPS device to track a suspected drug dealer’s movements for a month without a warrant violated the Fourth Amendment (The original opinion was issued under the case name United States v. Maynard). The panel rejected the government’s arguments based on an earlier United States Supreme Court case, United States v. Knotts. The panel distinguished Knotts by saying that the Court in Knotts specifically reserved the question of whether prolonged surveillance implicated the Fourth Amendment. The panel alsorejected the government’s argument that Jones did not have a reasonable expectation of privacy in his movements because all of these movements took place in public. Instead, the panel’s opinion suggested that Jones had a greater privacy interest in all of his movements together than each individual movementbecause the information gained by viewing the sequence of the suspect’s movements is greater than each individual trip viewed in isolation.
The panel decision seemingly puts the D.C. Circuit in conflict with the other three circuit courts of appeals that have addressed the relationship between the Fourth Amendment and the police’s use of GPS tracking devices. The Seventh Circuit (United States v. Garcia, 474 F.3d 994), Eighth Circuit (United States v. Marquez, 605 F.3d 604), and Ninth Circuit (United States v. Pineda-Moreno, 591 F.3d 1212) have all indicated that GPS tracking of suspects does not implicate the Fourth Amendment. Furthermore, as Chief Judge Sentelle indicates in his dissent to the order in Jones, there does not appear to be any meaningful way to distinguish the panel’s treatment of prolonged GPS surveillance with prolonged visual surveillance. Sentelle also rejected the panel’s mosaic theory of the Fourth Amendment saying that “the reasonable expectation of privacy as to a person’s movements on the highway is, as concluded in Knotts, zero. The sum of an infinite number of zero-value parts is also zero.” Although the current case law is unclear and the circuits’ application of such case law is inconsistent, one thing that is clear is that courts are in need of guidance about the relationship between the Fourth Amendment and GPS surveillance by police from the U.S. Supreme Court. The Supreme Court may have such an opportunity soon because Juan Pineda-Moreno’s attorneys have recently filed a petition for certiorari asking the U.S. Supreme Court to review the Ninth Circuit’s decision.