Police use of warrantless GPS tracking challenged

McLEAN, Va. (AP) - Police should be required to get a search warrant before placing GPS tracking devices on vehicles belonging to criminal suspects, privacy and civil liberties groups argued in court papers Tuesday.

The Electronic Frontier Foundation and the D.C. chapter of the American Civil Liberties Union filed a brief in the federal appeals court in Washington on behalf of Antoine Jones of Waldorf, Md.

Jones was sentenced to life in prison last year after he was convicted in what authorities say was the largest seizure of cocaine ever in the Washington area - 213 pounds.

But his lawyers say the case was built in part on information from a GPS device secretly attached to Jones' car and that police should have obtained a warrant first.

Dan Prywes, the lawyer who filed the brief on behalf of the ACLU, said such satellite technology makes it all too easy for police to engage in Big Brother-type surveillance unless the courts rein them in.

"Most people are aghast at the notion that police - without any showing of probable cause - could track them wherever they go by using an electronic eye in the sky," said Prywes, an attorney with the Bryan Cave law firm, which worked on the case on a pro bono basis.

Jones' trial lawyers also tried to have the tracking evidence tossed out of court, but U.S. District Court Judge Ellen Huvelle allowed the jury to hear it.

Prosecutors argue that GPS tracking is no different than physical surveillance conducted by police.

"Because Jones lacked a reasonable expectation of privacy in the whereabouts of his vehicle, the placement of the GPS device was proper, even in the complete absence of a court order," prosecutors wrote in their legal briefs dating to 2006.

Channing Phillips, a spokesman for the U.S. Attorney in Washington, did not immediately return a call Tuesday seeking comment on the most recent court filings.

Generally, courts have ruled that people do not have the same expectation of privacy in their cars that they have in their homes. In 1984, the U.S. Supreme Court ruled that police could place radio "beepers" in a car without a warrant, though in its opinion the court warned about all-encompassing "dragnet-type" technology.

Prywes said the precision of GPS tracking is far more intrusive than the "beepers" the court confronted a quarter century ago, and that the law needs to be revisited.

Jonathan Turley, a constitutional law professor at George Washington University, said the guidance from the U.S. Supreme Court on issues like these is muddled.

"These cases are very interesting because they raise a classic tension between technology and privacy," he said. "The Supreme Court has often had to alter its privacy doctrine to adjust for technological advances."

It is not entirely clear how often police agencies use GPS tracking, and how often they do so without a warrant.

In northern Virginia, several police agencies reported using warrantless GPS tracking hundreds of times over a three-year period, according to a defense lawyer who accumulated the date through Freedom of Information Act requests.

A few courts across the country have considered similar challenges. The New York Supreme court is considering a similar case, and in 2003 the Supreme court in Washington state ruled that, under the state's constitution, police must obtain a warrant before attaching GPS tracking to a car.

(Copyright 2009 by The Associated Press. All Rights Reserved.)