BY: MARK SWEET, ESQ.
Would you want someone knowing every single place that you drove to without you ever knowing it? That’s the new reality facing several people who may be committing illegal acts, and those who are only caught in the aftermath.
GPS Tracking In the News
Recently, a federal appeals court ruled that law enforcement officers could place a GPS device on a private person’s car without a warrant. A warrant is required under the Fourth Amendment and requires a law enforcement officer to demonstrate probable cause (with a few exceptions) before a warranty can be issued. The reason that a warrant must precede a search is to protect our privacy rights. The police officer must show that there is probable cause, meaning the police officer has a reasonable belief that a person has (or will soon) commit a crime, to a judge or magistrate before being given a warrant.
Court’s Ruling That Placing a GPS Device on a Car Is Allowed
So why would a court allow a law enforcement officer to place a GPS device on a person’s car without violating their Fourth amendment rights? Anytime you are in a public place you have no expectation of privacy. If you’re sitting on a park bench screaming into your cell phone, it’s understood that someone may overhear you. If you’re standing on the top of a car doing drugs (I am not sure what other reason you would have to stand on top of a moving vehicle unless you were intoxicated by some substance) then you expect someone will see you. This is essentially the argument that the court agreed with. The car could be tracked by helicopter, police car, or hot-air balloon, but instead it was tracked with a GPS device. These distinctions make no difference to the police officers.
There are several problems that come to mind. First, what area of a person’s property is actually private? What areas are open to the public? Is property in the public always open to an unwarranted police search? What about the interior contents of a purse? Can the police use sense enhancing equipment to overcome physical barriers as long as you’re in public?
Entering A Person’s Driveway To Place GPS Device
Next, there is an issue of law enforcement officers going onto a person’s driveway and attaching the GPS to the vehicle. Your home, office, or anywhere you expect privacy (even a shut phone booth) are areas protected under the Fourth amendment protection of privacy. The question can then become how far can we extend a person’s home, does it include a driveway, a front yard, or even the sidewalk in front of the house? There is no clear cut answer on this point of law and there are two main arguments. First, some argue that the driveway is a public area. Many people can cross the driveway whether it is a neighbor, a stranger, a dog, or even someone who is delivering a package. Additionally, sometimes people will pull into a driveway to take a phone call, turn around or try to figure out where they are. This means that the driveway is a public place (since almost anyone can go on it).
Why Some Judges Are Concerned That This Goes Too Far
On the other hand, the dissenting judges argue that a driveway is part of a residence. Your residence is not usually just what is behind a door, but what is “curtilage?” Curtilage is defined as “the area to which extends the intimate activity associated with the ‘sanctity of a man’s home and the privacies of life.’” So does a driveway constitute an area that is associated with the privacies of life? Certainly the inside of a garage would be (as the dissenting judge argues is to the advantage of rich people and the court is therefore being biased against poor people) considered an area associated with private life.
What about the fact that the police are attaching an object to someone’s car? Their car is private property, but is the object on the outside of the car even if it’s underneath the car in a hidden spot? Obviously you can’t attach a “hot air balloon” to a car without someone noticing. The judges that disagree are clearly worried that this is a slippery slope; can we then attach some type of monitoring device to a person without their knowledge (like a small chip)? The idea that someone can track your every movement (both in public and at home) would seem to go beyond the ruling of the court, but is it next?
What do you think? Should police be able to track your movements in your car after attaching a GPS while your car is in a driveway or parking lot? Let us know what you think! Leave a comment below.
