Why Is the Gov't Still Pushing for Warrantless GPS Tracking on Cars?

"Just because a technology wasn't around when the Constitution was written doesn't mean that it's not covered."

his Jan. 5, 2011 file photo shows Yasir Afifi at his home in San Jose, Calif., where a GPS tracking device was placed on his car. The Supreme Court ruled unanimously Jan. 23, 2012, that police must get a search warrant before using GPS technology to track criminal suspects.(Photo: AP/Paul Sakuma, File)

Even with the U.S. Supreme Court deciding last year that placing a GPS device on a vehicle in criminal investigations without a warrant violated the Fourth Amendment, the federal government is still seeking the ability to engage in warrantless tracking.

Wired reported that the government is appealing the decision of a 3rd Circuit Court judge who ruled, based on the Supreme Court's decision, that the warrantless GPS tracking evidence brought against the defendants should be thrown out of the case.

Here's more from Wired regarding the case itself:

The case concerns three brothers, Harry Katzin, Michael Katzin and Mark Katzin — indicted on allegations of robbing a Philadelphia-area pharmacy. The authorities suspected they were behind a string of late-night pharmacy heists, and attached the device to a Dodge Caravan they believed was used in the robberies. The police did not have a warrant.
Shortly after a 2010 Rite Aid heist, officers tracked the Dodge Caravan and arrested the brothers. Inside the vehicle, they discovered the pharmacy’s surveillance system and drugs in the vehicle that was monitored for 48 hours with a GPS device.

This is an example of a GPS monitoring device found on a car. (Photo: AP/ Yasir Afifi)

U.S. District Judge Gene E. K. Pratter ruled in May in favor of the GPS device needing to be installed with a warrant. According to her court decision, posted by the ACLU, she said the "GPS evidence taints the entire vehicle stop process" and because there was no other traffic violation that would have resulted in the van being stopped, the three men were "subject to an illegal seizure..." This gave the defendants the ability to challenge any evidence that was gleaned from the van being stopped in the first place.

The Justice Department, appealing this decision, said requiring a warrant for GPS tracking would "come at great expense to law enforcement investigations" and "would seriously impede the government’s ability to investigate drug trafficking, terrorism, and other crimes."

The appeal goes on to state that the device was not used to establish probable cause and that the fact that it was installed in the first place shows they had "reasonable suspicion" that would "permit use of a 'slap-on' device like that used in this case."

The Electronic Frontier Foundation explained that the government's appeal also argues against the Supreme Court's decision made in January 2012 on two counts: 1) that this decision was made after the officers in the Katzin case had planted their device, and 2) that the SCOTUS decision only applied to installation of the device, not to requiring a warrant to monitor movements with the technology.

EFF called these arguments made by the government "nonstarters." Here's more on their position made in November last year:

First, the Supreme Court has made clear that warrantless "searches" are per se unreasonable and a violation of the Fourth Amendment. Although there are some limited exceptions to this otherwise absolute rule, none of them apply to GPS evidence. The government claimed that the "automobile exception" -- which allows officers to search a car without a warrant if they have probable cause that they will find contraband or evidence of a crime -- applies to GPS searches. But this blows a huge hole through an otherwise narrow exception. The automobile exception is about making sure contraband and evidence don't drive away, not about providing a mechanism for law enforcement to track people.
Second, as the trial court explained, at the time of the GPS installation in this particular case, courts across the country were considering the constitutionality of GPS tracking, and some were finding it blatantly unconsitutional. Most damning, in the case that would eventually lead to the Supreme Court decision in Jones, the D.C. Circuit decided that the warrantless installation and use of a GPS device violated the Fourth Amendment just four months before the FBI planted the GPS device here.

The case will be heard in federal appeals court Tuesday. The ACLU will argue in favor of the judge's original ruling, which necessitated a warrant for use of such a device.

"Just because a technology wasn't around when the Constitution was written doesn't mean that it's not covered," Catherine Crump, an ACLU attorney who will argue Tuesday, said in a statement. "The fundamental privacy rights established by the Fourth Amendment require that police justify their actions and show probable cause to a judge before they can conduct invasive surveillance like constant location tracking. The 'automobile exception' was created so police could find contraband hidden in cars, not so they could monitor a person's movements nonstop for days or even months on end."