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February 11, 2011 /24-7PressRelease/ -- Current mobile phones and electronic devices are verging on the technological brink of those predictions and visions many science fiction movies once imagined. But police use of wiretaps, beepers and the global positioning system (GPS) tracking devices may call to mind an Orwellian setting--the feeling that Big Brother is watching. With the development of new tracking, positioning and monitoring instruments, courts are repeatedly called upon to redefine the reasonable privacy expectations of those under surveillance and criminal investigation.
Privacy Expectations in the Face of Technological Change
The Fourth Amendment to the U.S. Constitution protects people from unreasonable searches, such as searches without a warrant. In general, a search may be reasonable where there is a valid search warrant, probable cause, or where consent to the search has been given.
Historically, the determination of whether police activity constituted a search turned on whether there had been a physical intrusion. In an historical 1967 decision, the U.S. Supreme Court ruled that a warrantless wiretap on a public phone booth violated the defendant's Fourth Amendment expectation of privacy. The Fourth Amendment protects people, not places, explained the Court in its decision that the defendant was entitled to remain free from unreasonable searches and seizures despite the public nature of a phone booth.
In 1983, the Supreme Court said the use of a beeper to track vehicle movement without a warrant was permissible. The suspect's movements were visible so that anyone could have observed what the police did without utilizing the beeper; therefore, the Court found he had no reasonable expectation of privacy.
In 2001, the Supreme Court acknowledged that "t would be foolish to contend that the degree of privacy secured to the citizens by the Fourth Amendment has been entirely unaffected by the advance of technology." The Court nevertheless held that a minimum expectation of privacy is reasonable. Thus, the Court disallowed thermal images of a home; these images, for example, showed abnormal levels of infrared radiation associated with marijuana cultivation. The Court said the government had obtained the images without a warrant. By using a device not in general public use, what the police could see with thermal images would previously have required physical intrusion.
The United States Court of Appeals for the District of Columbia recently declined to reconsider an earlier decision by a three-judge panel relating to GPS tracking. The panel found that the police violated the constitutional rights of Antoine James when officers, without a warrant, installed a GPS tracking device on his vehicle. The court said that James had a reasonable expectation of privacy protecting him against the monitoring and recording of every car trip, and given that the GPS data was essential to the government's case, the court reversed the life sentence originally imposed on him.
The court differentiated between use of the beeper to monitor movements in a discrete journey and sustained, comprehensive monitoring with the GPS tracker. Justice Ginsburg, writing for the unanimous panel, said the whole of a person's movements over a course of a month is not exposed to the public, but rather reveals an intimate picture of his or her life.
Should Technology Define Privacy Expectations?
The prosecution in the Jones case argued that where surveillance is on public roads, substitution of a beeper with GPS makes no difference. According to The Washington Times, the federal appellate courts in the 7th and 9th Circuit have already addressed this issue, and side with the prosecution's theory. Both courts have ruled that GPS use, even over a long period of time, is not a search within the meaning of the Fourth Amendment.
Technological advances continue to influence the body of criminal search and seizure law, prompting some to question whether the public expectation of privacy is or should be diminished with technological growth.
An unconstitutional search may be grounds for dismissal of all charges. Those who have been charged with, or arrested for, a crime should contact a lawyer promptly. A criminal defense attorney can protect your constitutional rights.
Article provided by The Law Offices of John W. Tumelty
Visit us at www.johntumeltylaw.com
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