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[Editor’s note: This feature story is part two of an occasional series involving electronic surveillance and its impact on the Fourth Amendment in drug investigations and other criminal matters in the United States. Read the first installment in the series here. Clarence Walker is a Houston-based criminal justice journalist. He can be reached at [email protected].]
Recent federal and state court decisions that overturned narcotic convictions of suspected drug dealers as a result of law enforcement using warrantless GPS tracking devices to watch suspects have triggered an intense debate over the Fourth Amendment, which provides citizens against unreasonable search and seizures.
The GPS controversy is at the center of a raging legal discussion over privacy rights: Should law enforcement be allowed to install a GPS on a vehicle without a warrant during criminal investigations to track a suspect’s movement 24-7, and does warrantless tracking violate a person’s privacy although they are being watched by the police in public?
Two significant 2010 decisions on privacy rights under the Fourth Amendment highlight the continuing struggles that courts around the country are having around GPS tracking. In August, the DC 9th Circuit Court overturned the conviction of Antoine Jones based on police using a warrantless GPS to connect Jones to places containing several kilos of cocaine. Jones was sentenced to life without parole at Supermax federal prison in Florence Colorado. (Read more about the Antoine Jones case here.)
Legal experts say this case might go before the US Supreme Court. Federal prosecutors were denied an en-banc hearing in November to have a full court to throw out the 9th Circuit decision, and they have until February 14 to petition the Supreme Court to consider their appeal of the Jones case. In the meantime, Jones continues to sit in prison.
"When the court denied the government an en-banc hearing, this sets up the Antoine Jones case for the Supreme Court to decide if GPS tracking violates the Fourth Amendment. The importance of the Jones case is that it would be the first time the Supreme Court would decide GPS surveillance in relation to search and seizure," said Stephen Lecklar, who wrote the appeal that reversed Jones conviction.
In a second case, Delaware v. Holden, on December 28, Delaware Superior Court Judge Jan Jurden reversed a suppression hearing from a lower court involving drug charges against Michael Holden. Holden, a Newark resident, was stopped by police carrying 10 pounds of marijuana. The evidence showed that prior to arresting Holden, police used GPS tracking without a warrant to follow him for 20 days.
Antoine Jones remains in federal prison pending, he hopes, one last government appeal. (Image courtesy the author)
"The advance of technology will continue ad infinitum," said Judge Jurden in throwing out the charge. "An Orwellian state is now technologically feasible. Without adequate judicial preservation of privacy, there’s nothing to protect our citizens from being tracked 24-7. And if no warrant is required for such surveillance any individual could be tracked indefinitely without suspicion of any crime by police without probable cause."
Meanwhile, Antoine Jones remains frustrated over the fact of being unable to be released on bond although his conviction has been reversed and the appellate courts this past November also denied the feds to an en-banc hearing to strike down the ninth circuit original decision.
"We are pleased that the Court of Appeals declined the Government's request for en banc reconsideration and reaffirmed the constitutional concerns identified by the ninth circuit," Jones' appellate attorney, Stephen Leckar, said in an email sent to reporters covering the case.
But Jones questions why he's still in prison."My conviction has been overturned, the en-banc hearing was denied, the appeal process is over but I am still in this hellhole," he wrote to the author. "The feds' last shot is to petition the US Supreme Court, but the experts have said that only one-percent of petitioners are chosen for review."
"The court should release Mr. Jones on bond," said California attorney Diane Bass, who handles federal drug cases.
Chances for Jones's release on bond pending the government's next course of action are unclear. "The issues that a court looks at when deciding whether to release someone on bond are, is the defendant a flight risk or a danger to society," Bass said. "In an appeal situation, they also look at whether there are viable issues on appeal. Drug cases carry a presumption of flight, because of the mandatory minimum sentences which the defendant has the burden of rebutting. And the court would require an equity of $100,000 or more. I would say that since there's a possibility the Supreme Court will deny certiorari in this case, the court would be wise to release Mr. Jones on appeal."
Delaware Superior Court Judge Jan Jurden
"There's no clear Supreme Court guidance on this issue," said John Verdi, a senior counsel at the Electronic Privacy Information Center, a DC-based advocacy group. "Courts have left the states to decide what should be done using their own state constitutions."
Some states, like Texas, have specific requirements law enforcement officers must meet to obtain a warrant for GPS tracking. What isn't too well publicized is that an officer can ask the court for a tracking order based on reasonable suspicion as opposed to requesting a warrant which require a higher burden of probable cause.
Steve Baldassano, a senior-level prosecutor with the Harris County District Attorney Office in Houston explained: "A tracking order requires 'reasonable suspicion.' If it's okay for a cop to follow someone in a car, it's not that much worse if the cops watch a person using electronic signals."
An unidentified Houston Police Department narcotic officer offered this blunt view: "Theoretically, a person can have a GPS tracker placed on their vehicle for life as long as the investigator has reason to believe the person will commit criminal offenses."
Whatever the realities on the street, the state and federal courts have split on warrantless GPS tracking and related issues. Courts in Wisconsin and Virginia have supported warrantless tracking, while courts in New Jersey, New York, Oregon, and Washington have ruled against it. With the federal appeals court also split, the issue seem ripe for Supreme Court review.
In the meantime, big brother is staying busy. Maryland state officials announced last year they would implement a statewide network in 2011 to collect data from automatic license plate readers. "The license plate reader provides the plate number, exact time, and the GPS location of a vehicle upon sight," the Muckraker blog noted.
With technological innovation fueling the rise of the surveillance state, preserving one's privacy from the state looks to be ever more difficult. By the time the Supreme Court has sorted out warrantless GPS tracking, there will doubtless be some new form of surveillance that we will have to be litigated.
Permission to Reprint: This content is licensed under a modified Creative Commons Attribution license. Content of a purely educational nature in Drug War Chronicle appear courtesy of DRCNet Foundation, unless otherwise noted.
Comments
sickening
This kind of shit makes me so mad that i cant even stand to finish reading this. This is something you would think Nazi Germany would do if they were still around or even Stalin, But america, this is obviously a clear violation of human rights. I mean sure the government can do this shit and break in without warrents really who is going to stop them and we might safer and catch more bad criminals but at the cost of are freedom. Ben Franklin said 'Any society that would give up a little liberty to gain a little security will deserve neither and lose both. ''';g
In reply to sickening by rebelfigher (not verified)
this is exactly where we are
this is exactly where we are going, except the new jews are muslim now...
Right to Privacy
What we need is a Constitutional amendment guaranteeing our right to privacy. That would solve a lot of problems, and clarify the government's position on a whole range of issues. Virtually all laws that criminalize behavior engaged in by one or more consenting adults would be invalidated. It's quite simple really. But very unlikely, as it would severely limit our government's ability to intrude into our lives.
The Real IssueDwight
The Real Issue
Dwight Eisenhower once said,
"If you want total security, go to prison. There you're fed, clothed, given medical care and so on. The only thing lacking... is freedom."
If this man is a criminal then he needs to go to jail.
the real issue is, how many INNOCENT people have life time surveillance because an ex-spouse, begrudging neighbor or overzealous cop decides you are a suspicious character who will, at some future date, commit a crime. that is what needs to be exposed.
another reason he is in there
If he was selling to your child, your child ruined his life because of drugs being sold by this man, your child shot someone while on drugs sold by this man, or your child stole from you to buy his drugs from this man, would you be so generous to him then?
In reply to another reason he is in there by Guesswho (not verified)
Why stop there in your search
Why stop there in your search for someone to blame for your child's shortcomings? What about blaming someone who set up a system which inevitably leads to your child buying drugs of unknown quality and potency on the streetcorner from someone who has nothing to lose? Of course I mean prohibitionists. Tough on crime, soft in the head prohibitionists. If you back prohibition, you want your kids to suffer for no good reason.
this is easy to resolve
Privacy is dead. Technology has already guaranteed that, and private interests in the financial industry have demanded it for some time. Experian is one private agency that spies on all of us without warrant. "Free Credit Report Dot Com" is a program designed to ensnare as many as possible in that web; it gives them permission, reason, and knowledge necessary to assemble data about individuals.
Since we can't have privacy, then we must insist all the more on freedom. Freedom means knowing what the government, and what all the spies, both private and public, are learning about us, both collectively and individually. The problem is not the transparency between officials and the public. The problem is that the transparency is like one-way glass. Replace the one-way mirror with clear glass, and light up the control room, so we can watch them watching us. (And so we can just watch them, regardless of whether they're watching us.)
True, we'll all have to grow up a lot in order to make that happen. We'll have to be desperate. Too many of us have too much we'd rather hide. But we are only deluding ourselves. We cannot hide any more. Our belief that we can "get away with" stuff is among the shackles with which the tyrants bind us. And if you don't feel enslaved by the operators of the global financial system, you're just not paying attention. Wake up!
In the meantime, OPPOSE THE RENEWAL OF THE PATRIOT ACT. In the long run, it really doesn't matter, but until we secure the ability to watch both the government and the "commanding heights" of private wealth and industry, we need whatever shreds of privacy we can keep. It's going to get mighty cold out there before such fundamental change will occur. First, we'll all have to be really desperate.
In reply to this is easy to resolve by Steve Newcomb (not verified)
And then it will be too
And then it will be too late.....
The Pledge of Allegiance:~
The Pledge of Allegiance:
~ Strike "GOD" and replace with "SURVEILLANCE"
~ Insert "SHARPLY CURTAILED" between "WITH" and "LIBERTY"
-- Insert "OF THOSE RICH ENOUGH TO HIRE THE MOST EXPENSIVE ATTORNEYS" after "ALL"
Anybody remember back in the '80s when grandstanding Republicans and Democrats promised us "a drug-free America by 1995?"
"All we need to do is spend BILLIONS MORE of YOUR money and 'drugs' will go away!" Yeah, right!
__________________________________________________________________________
"It is the natural order of things for government to gain ground, and for Liberty to lose." - Jefferson.
There are only two ways to go: toward Liberty, or toward control.
Think of Liberty as a synonym for privacy. Think of privacy as your personal bubble. Your personal bubble is where you may do anything you wish. It is not possible to hurt anyone else as long as you remain in your bubble. You may think of this bubble as your residence, for example.
Telling someone what they may not do inside their own personal bubble is a clear violation of Liberty. There is no logical way to dispute this and the only ones who would dispute this are those who favor control. Furthermore, the only ones who favor control are those who operate out of fear.
Other countries may claim ignorance of the principles of Liberty. The United States has no such luxury. We are the defenders of Liberty, are we not? Or are those merely words which sound good but have no meaning?
Liberty can sometimes be an ugly or threatening thing - but Liberty is a single and whole thing and cannot be chopped up. Either Liberty is defended completely, or not at all. Otherwise, control takes over, and that obviously is not Liberty.
In an absolute sense, nothing is wrong with either end of the spectrum. Control, in itself, is not a bad thing. It's simply the opposite of Liberty. However, choosing first one and then the other is comparable to switching teams back and forth in the middle of a football game. It would be very confusing, very hard to follow and would destroy the integrity of the game. It would lead to chaos.
That's what we have here. In order to bring order, we need to behave in an orderly fashion. Either Liberty, or control, but not both. And once we decide, it's very difficult to switch back - especially if control is chosen.
This is because that once control is chosen, then control will take over your life. Every movement, every aspect, every detail of your life which can be controlled, will be controlled.
Which way do you choose?
[accredited to "Time Traveler" on Yahoo!]
Honesty
This is something which no one has the right to do, to indefinitely observe a human being for no reason other than that they might imagine that person has been involved in activities deemed "unsavory" by the majority of individuals. Regardless of age or gender, if this person had been doing something IN PUBLIC VIEW to cause CLEAR HARM to anyone, even themselves, fine, ask them what they are doing and why they are doing it. If we are to take seriously our publicly funded police officers, our trusted leaders, and anyone else involved in the laws of this country, how can we do so if all it takes is a mere suspicious moment? We are NOT by origin a police state. We are NOT by origin an assembly of individuals against the idea of living our own lives. We are NOT a country built on the ideals of controlling every facet of the lives of it's inhabitants. We are the United States of America. We are a collection of peoples from around the world, coming together to live in freedom, so long as the actions we take are NOT intended to directly harm others mortally. We are born with free will, we are born with the knowledge that we are an individual. I can not take seriously and person who assumes that they speak for me without my consent. I think, therefore I am.
I am NOT, however, ready to accept that anyone I do not know, do not interact with, is ready to choose for me what is right or wrong. If the majority of people decide it is wrong for me to breathe, do I outlaw inhalation?
No.
If I were to hear of a decision that I were not allowed to breed as my race or skin tone or beliefs were not those of 50% of this country, do I obey it?
NO.
I am an AMERICAN CITIZEN, born and bred. I believe in law and order. I do NOT believe in the criminal actions of our government against its citizens. I do NOT believe in outlawing liberty! I believe that we, as a people, are responsible for helping those who consume to excess if they genuinely wish it, but not demanding that they change and live their life against their own will.
Why do we allow this? Without our consent this government can NOT exist. We are all born the same with instinctive knowledge of necessity (i.e. nourishment, warmth, etc.), it is the environment that changes. This is food for thought. Let it mull around in your brain, consider it when you make your choices. Are you their servant or are you an American citizen? THEY serve YOU, as we pay them to. I will not be controlled by my creation. Will you?
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