The United States Court of Appeals for the D.C. Circuit decided last year that long-term GPS surveillance cannot be conducted over a person without first obtaining a warrant issued upon a showing of probable cause. This is a major departure from previously established Fourth Amendment law.
In 1983 the United States Supreme Court held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” United States v. Knotts, 460 U.S. 276, 281 (1983). However, the Knotts Court specifically limited its holding to the facts at issue, which involved the placement of a transmitter on a container which was thereafter driven to a cabin – tracking the container as it moved from one place to another. The police followed the vehicle to the cabin and used the transmitter to maintain and regain visual surveillance. The Court reserved the question of whether “twenty-four hour surveillance … without judicial knowledge or supervision” would require a different result. Id. at 284.
In United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), the Court addressed the issue reserved by Knotts and determined that the month-long warrantless tracking of a person around the clock is in fact unconstitutional. The Maynard Court held that there is an expectation of privacy in one’s movements over the long-term; that society recognizes that expectation of privacy; and that “the use of the GPS device to monitor those movements defeated that reasonable expectation.” Id. at 562-64. In essence, the Court in determined that long-term GPS monitoring is a search which first requires the issuance of a warrant upon the showing of probable cause.
To understand the Maynard Court’s reasoning, it is important to recall the basic distinction in Fourth Amendment law between inside surveillance and outside surveillance. Activity inside homes, inside cars, inside packages, and activity hidden from public view is generally protected because a reasonable person would believe he has an expectation of privacy for what occurs behind closed doors. In contrast, outside activity is generally not protected for the simple reason that is exposed to the public and therefore generally not believed to be shielded from public view.
Maynard holds that this reasoning does not apply when GPS monitoring is conducted over a long period of time. This is because it is extremely unlikely that a reasonable person would expect anyone to observe the whole of his movements over a long period. The Court noted that “the likelihood a stranger would observe all those movements is not just remote, it is essentially nil.” Because of that lack of likelihood, the Court determined that a person has a reasonable expectation of privacy over the whole of his movements over the long-term. Accordingly, the Court held that a warrant is required before conducting long-term GPS surveillance.
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