Three days ago, an Ohio appeals court tossed the conviction of David White who had been indicted in a string of home invasions with a gun. (State v. White, 9-1-2011, Fairfield App. No. 2010-CA-60). Why? Because a detective decided to put a GPS tracking device on White's vehicle without first securing a warrant from a judge. Courts across American and Ohio are split on this 4th Amendment issue. The United States Supreme Court will hear Oral Arguments this fall concerning the reasonableness of police use of GPS tracking devices without first securing a warrant.
Police and prosecutor's argue that tailing a suspect is the oldest form of police surveillance and police have never needed court permission to do so. But a detective tailing a suspect isn't nearly the same as trespassing onto private property, sliding underneath one's private vehicle, and affixing a GPS transmitter that documents a person's driving history indefinitely. Strip the crime fighting legalese from the government's logic and you're left with this -- if one cop decides to track your vehicular life for as long as he wants without getting a judge's pre-approval, that's not only reasonable, it's constitutional. Government prosecutors will argue we do not have the expectation of privacy in our vehicles. That the law must keep up with the technological advances.
At its core, there is something just un-American about this. Do we have an "expectation of privacy" when our vehicles are parked on a city street? How would you feel if you came out of a restaurant to find a detective on his back underneath your car installing a GPS tracking device? You would feel as though he has no right to do that. Of course we have an expectation of privacy when it comes to someone invading the "private space" of our vehicles – even its undercarriage.
What if you learned that your local police department put a GPS tracking device on your vehicle 3 months ago and have logged every place you've been, how long you were there, and what time you got home? Is it reasonable for you to call the police chief and say, "Why?" In criminal law, the "why" has to be answered with specific facts known as "probable cause". If you feel like the government should have probable cause to log your life using a GPS tracking device, then you believe a search warrant is required first.
If we, the citizens, find a governmental intrusion unreasonable, it violates the 4th Amendment and is unconstitutional. Anyone who is intellectually honest should admit that the unfettered discretion of a single cop to track the whereabouts of one of us, with or without probable cause and without a search warrant is wrong.
I agree with one federal judge who called GPS tracking without a warrant "creepy and un-American". The core of the 4th Amendment is to prevent arbitrary intrusion by the police. Unfettered discretion by a detective to track one of us (a) without probable cause to believe we are engaged in criminal activity and (b) without judicial supervision is a clear violation of the Ohio and United States Constitutions