Rohn K. Robbins
Vail Law
Vail, CO Colorado

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December 20, 2011
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Vail Daily column: GPS surveillance and the Fourth Amendment

Big Brother may be on your tail. Be afraid. Be very afraid.

Even if your conscience is as clear as Timmy T's, a recent court decision may have upset the already unsteady apple cart of Constitutional freedoms, and your right to privacy may well be on the line.

More on that in just a sec.

First, however, just what is the Fourth Amendment and what precious rights is it meant to preserve and protect?

The Fourth, like many of its Constitutional brethren, is surprisingly brief. It provides, in whole, that, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."

However short and pithy, the Fourth says a mouthful as it assures each citizen a fundamental right to privacy and the right to be secure from heavy-handed police state tactics.

Thankfully, we live in a nation where ham-handed policing has historically been rare. And yet our Constitutional freedoms must be jealously guarded. A little creeping retraction of our rights can, if we shrug and look the other way, lead inexorably to Airstrip One (hey, look it up!).

What, then, has my undies in a bunch?

It's this: GPS, the global positioning devices that have seemingly become as common as the common cold. If plopped under the chassis of your ride by the local constabulary, for example, does its use amount to a "search" as contemplated by the Fourth Amendment and, if so, before affixing it, must your local law enforcement officer first hie it to a judge, establish probable cause, and secure a warrant? Even so, might its use be "unreasonable" as envisaged by the Fourth? And, by the way, how long can law enforcement leave the darn thing on without intruding on your rights?

Although historically, the Supreme Court held that in order for a "search" to take place, there must be actually physical penetration onto a site, technology has blurred the line.

As early as 1967 (in Katz v. United States), the Court reconsidered, finding that - hold on a sec! - physical intrusion may not always be required. In Katz, the Court decided that where the government electronically listened to and recorded Katz's words when he used a telephone in a public phone booth, it violated his right to privacy and amounted to a "search and seizure" within the Fourth Amendment, even though the electronic listening device did not penetrate the phone booth walls.

In the 80s, there were mixed Supreme Court decisions regarding early tracking devices. In one key case, a radio transmitter planted in goods was followed on a public roadway. This was found to be constitutional on the grounds that such "bugging" was akin to following the goods with your own senses however "enhanced" those senses might be by the transmitter. The goods were at all times in a public place. There was, accordingly, no reasonable expectation of privacy. In a markedly similar case, however, "bugged" goods found their way into a private residence. The moment they crossed the threshold, all bets were off. The court carved out a clear distinction between "aided" surveillance in the public domain and unlawful surveillance when "bugged" goods came into a private residence where a reasonable expectation of privacy could be presumed.

In an interesting 1984 (note the chilling date!) case, the court concluded that obtaining thermal images from inside a home was in fact, a "search and seizure" despite law enforcement's argument that the imaging device simply obtained information that emanated from within the home. The court, however, ruled that when the government employs a device to obtain details otherwise unobtainable without physical intrusion, the Fourth Amendment is implicated, and a "search" has taken place.

Similar arguments and distinctions have arisen around cell phone "pings." The weight of opinion seems to suggest that if your pings are followed by law enforcement in a public place, well, that's fine and dandy. But if you and your cell phone repair to a private setting, Katy bar the door!

Which brings us to 2011 and the Janus mask of GPS.

Like the radio transmitters of old, a GPS unit can be placed on an object and its movements followed. However, unlike the old transmitters, you can be in Timbuktu and track a GPS in Zanzibar.

Although various lower courts have ruled that a GPS is essentially "bug-like" and, so long as you're out and about in public, no harm, no foul, a recent lower court decision found that where FBI agents planted a GPS tracking device on suspect's car and monitored the car's position every 10 seconds for an entire month, without a warrant, everything was peachy, despite the fact that it was impossible to maintain that so doing amounted to an "enhancement" of one's senses.

The case was appealed to the United States Court of Appeals for the District of Columbia, was argued to the Supremes last month, and now sits before the court for its determination. The issue for the court is to consider is whether the Constitution allows police to put a tracking device on a car without either a warrant or the owner's permission; and whether the Constitution is violated when police use the tracking device to keep track of the car's whereabouts.

Which way this comes out, of course, has deep and meaningful implications. Will the court accept Big Brotherism's stealthy creep or will it put its foot down and respect, as in the past, that what is private is, well, private? For now, we'll simply have to wait and see.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners' associations, family law and divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of "Community Focus." Robbins may be reached at 970-926-4461 or at his email address, robbins@colorado.net.


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The VailDaily Updated Dec 20, 2011 09:56PM Published Dec 20, 2011 09:55PM Copyright 2011 The VailDaily. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.