Washington D.C. — On Friday, November 19, 2010, a divided U.S. Court of Appeals for the District of Columbia issued an order rejecting the U.S. Justice Department’s request for an en banc review of an August ruling requiring law enforcement authorities to get a warrant before using GPS devices to track a suspect.

On August 6, 2010, a three-judge panel of the D.C. Circuit Court unanimously overturned Antoine Jones’ life sentence on the ground that law enforcement authorities had violated Jones’ Fourth Amendment right to privacy by attaching a GPS device to Jones’ car without a warrant and using that device to track him for four weeks. The court’s August ruling can be found here.

Antoine Jones, a D.C. area nightclub owner, was arrested for drug possession after police attached a GPS tracking device to his vehicle. Local authorities had monitored Antoine Jones for a month without a warrant before they nabbed him. Judge Ginsburg in his decision wrote that “[a] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous.”       

The U.S. Justice Department asked the full D.C. Circuit to reconsider the case, but the request was denied by a 5-4 majority. The court’s order denying the request can be found here.

Chief Circuit Judge David Bryan Sentelle, writing for the court’s four dissenters, complained that the panel’s ruling is inconsistent with other appellate court decisions as well as “controlling Supreme Court precedent.” Chief Judge Sentelle referred to United States v. Knotts, 460 U.S.  276 (1993) (found here) as the controlling Supreme Court precedent inconsistent with the panel’s decision.

In Knotts, the Supreme Court reviewed a case in which law enforcement officers placed a radio transmitter inside a chloroform container that was subsequently sold to Armstrong, who law enforcement authorities believed was purchasing chloroform to manufacture illegal drugs. Armstrong placed the chloroform in his car and authorities used both visual surveillance and the monitoring of the radio transmitter to track Armstrong to his secluded cabin in Wisconsin. After three days of intermittent visual surveillance of the cabin, the authorities secured a search warrant, discovering the chloroform container and other chemicals and formulas used for creating methamphetamines inside the cabin. The Supreme Court held that the radio transmitter’s signals did not invade any legitimate expectation of privacy on behalf of Armstrong, and therefore there was neither a search nor seizure within the contemplation of the Fourth Amendment. 

Chief Judge Sentelle stated that “[E]verything the Supreme Court stated in Knotts is equally applicable to the facts of the present controversy,” noting that the tracking of movements with a radio transmitter is immaterially different from tracking someone with a GPS device. He further notes that there cannot be an invasion of privacy without a reasonable expectation of privacy, and since Jones was driving on public roads, there was no reasonable expectation of privacy, and therefore no invasion of privacy. 

Chief Judge Sentelle also refers to three circuit court decisions in which the courts did not recognize the tracking of suspects through GPS surveillance as a search. See United States v. Garcia, 474 F.3d 994 (7th Cir.), cert denied, 128 S.Ct. 291 (2007), found here; United States v. Marquez, 605 F.3d 604 (8th Cir. 2010), found here; United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010), found here.