About two years ago, I wrote a paper on GPS tracking. It's available here. There have been a couple of major decisions in the area recently, so this post is a bit of an update to my earlier work. I wrote in the paper that "[m]ost, but not all" courts have found that when the police use a GPS tracking device to monitor a suspect's location, they are not conducting a Fourth Amendment search. Courts generally have based this conclusion on United States v. Knotts, 460 U.S. 276 (1983), which held that the police were not conducting a search when they used a radio "beeper" to help them track a vehicle. The Knotts Court said that "[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another," given that those movements are open to the observation of anyone who cares to look. And police investigation that doesn't intrude on a reasonable expectation of privacy, of course, doesn't constitute a search. "Most" courts doesn't include the D.C. Circuit. A few weeks ago, it handed down United States v. Maynard, in which it distinguished Knotts and ruled that prolonged GPS surveillance does invade the subject's reasonable expectation of privacy and so is a search for Fourth Amendment purposes. The unanimous opinion was written by Judge Ginsburg, and joined by Judges Tatel and Griffith. (For those keeping track, they were appointed by Presidents Reagan, Clinton, and Bush, respectively). It states: [U]nlike one's [...]
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