I've had quite a few questions from officers and others about United States v. Jones, the Supreme Court's recent GPS tracking decision. I previously summarized the case here. Below, I’ve collected some of the questions I've been asked and my answers. It should go without saying that officers should check with their supervisors and agency attorneys before adopting the advice below. 1. Is judicial authorization always necessary before installing and using a GPS tracking device? Jones doesn't answer this question. It holds that the installation and monitoring of such a device is a search, but it doesn’t address the circumstances under which such a search is reasonable for Fourth Amendment purposes. Part III of the opinion notes that the government argued that the search was reasonable even without judicial authorization, but the Court declined to consider that argument because the government had not raised it below. However, the general rule is that “[e]xcept in certain well-defined circumstances, a search . . . is not reasonable unless it is accomplished pursuant to a judicial warrant.” Skinner v. Railway Labor Executives’ Ass’n, 489 U.S. 602 (1989). Thus, while there may be cases in which, for example, exigent circumstances would justify the use of a tracking device without prior judicial authorization, absent such unusual circumstances, it appears that prior judicial approval is required. A somewhat contrary view from Supreme Court specialist Tom Goldstein is here, revised and refined further in a longer post here. He speculates that in a future case, one of the [...]
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