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Here We Go Again: Warrantless GPS Tracking an Unreasonable Search?

By Robyn Hagan Cain on August 15, 2012 | Last updated on March 21, 2019

You might recall that the Supreme Court decided a little case called U.S. v. Jones back in January. The issue in the case was whether warrantless GPS tracking constituted an unreasonable search.

Justice Antonin Scalia, writing for the majority, concluded that physical trespass upon the vehicle in question — police attached a GPS tracker to the undercarriage of the car to track the suspect — triggered the unreasonable search.

The problem that — oh, everyone — pointed out at the time is that GPS tracking is far more likely to occur without placing a tracker on a car these days, and the majority neglected to address whether warrantless GPS tracking in general was an unreasonable search.

The Sixth Circuit Court of Appeals was more forthcoming in its analysis on the matter.

Tuesday, the Sixth Circuit ruled that cops don't need a warrant to track a cell phone GPS signal, reports The Wall Street Journal.

In the facts leading up to the case, Drug Enforcement Administration officials used GPS data from a drug runner's disposable cell phone to track his movements.

Clearly, the defendant in this case was using a disposable phone because he didn't want to be tracked, but the Sixth Circuit Court of Appeals concluded that he didn't have a reasonable expectation of privacy in the data given off by his voluntarily-procured pay-as-you-go phone. "If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal," Judge John M. Rogers wrote for the majority.

That brings up back to Jones. In her concurring opinion, Justice Sonia Sotomayor anticipated this scenario, noting that the unreliable ear theory is outdated in an age when we voluntarily provide so much information about ourselves to third parties -- like phone carriers -- who we expect to keep quiet.

Justice Sotomayor wrote, "I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection," and that Fourth Amendment jurisprudence must cease to "treat secrecy as a prerequisite for privacy."

A petition for certiorari is a no-brainer in this case. Do you think the Supreme Court will consider whether warrantless GPS tracking of a cell phone signal is an unreasonable search?

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