Since the passage of Mary’s Law in Michigan and Cindy’s Law in Illinois there is much discusion on the constitutionality of monitoring batterers and stalkers. The impact of this appellate case and how it may impact the future of domestic violence cases and the use of GPS is not yet known.
 Federal Appeals Court Requires Warrant for GPS Tracking
On August 6, 2010, the D.C. Circuit Court of Appeals ruled that police
must obtain a warrant before using Global Positioning System (GPS)
devices to monitor vehicles. GPS tracking constitutes a seizure under
the U.S. Constitution because “prolonged GPS monitoring reveals an
intimate picture of the subject’s life that he expects no one to have,”
the Court held.
In United States v. Maynard, criminal defendants challenged the
constitutionality of warrantless electronic tracking of civilians’ cars
by the police. DC Police installed a global positioning system (“GPS”)
device on Jones’s Jeep, and tracked his movements around the clock. The tracking data was used as evidence at the criminal trial. GPS-based systems can record a vehicle’s location and speed around the clock, and transmit the data to law enforcement agents. Jones argued that the conviction “should be overturned because the police violated the Fourth Amendment prohibition of_unreasonable searches by tracking his movements 24 hours a day for four weeks … without a valid warrant.”
The court held that the police’s GPS surveillance was unlawful, because it enabled the police to “track Jones’s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.”
The court noted that United States v. Knotts, a 1983 Supreme Court case authorizing rudimentary warrantless electronic surveillance of cars, does not authorize warrantless GPS tracking.
The DC Circuit decision follows two other federal appeals court
opinions that authorized warrantless GPS tracking, United States v. Pineda-Moreno and United States v. Garcia. Conversely, the New York and Washington state supreme courts have barred warrantless GPS tracking.
The Massachusetts Supreme Judicial Court also held that a warrant isequired for the use of a GPS tracking device. EPIC filed an amicus brief in the case, Commonwealth v. Connolly. EPIC urged the Justices torequire a warrant before police covertly track drivers using concealed surveillance technology.
EPIC said the proliferation of police trackingdevices “creates a large, and largely unregulated, repositorycontaining detailed travel profiles of American citizens.” The EPIC brief warned that “law enforcement access to such information raises the specter of mass, pervasive surveillance without any predicate act that would justify this activity.”
EPIC said that GPS systems are becoming increasingly widespread, and identified particular growth among vehicle-installed GPS systems. The federal government is currently tracking drivers in six states using GPS tracking systems designed to assess a mileage tax as an adjunct or replacement for federal gasoline tax revenue. Several states, includingMassachusetts, have proposed similar plans, which are often called “VMT Vehicle Miles Traveled)” regimes. Some private firms, including UPS, mandate GPS tracking on their vehicles. Others, such as OnStar, offer GPS tracking services to the public. The brief explains that, as GPStrackers become more commonplace, it is easier for law enforcement toengage in large-scale, simultaneous surveillance of multiple individuals. Such ease raises the troubling prospect of mass, pervasivesurveillance. EPIC’s brief urges the court to require a warrant, basedon independent judicial review of the evidence, prior to law enforcement use of GPS tracking.
DC Circuit decision – United States v. Maynard
“Friend-of-the-court,” Brief by EPIC in Commonwealth v. Connolly
Massachusetts Supreme Judicial Court Docket page for
Commonwealth v. Connolly
EPIC’s Commonwealth v. Connolly page