Does police use of a GPS tracker require a warrant?

Writers often ask about searches, and this week, the U.S. Supreme Court answered a big question: Are police required to obtain a warrant before placing a GPS tracking device on a vehicle? Yes, the Court said, agreeing unanimously on the outcome, but splitting 5-4 on the reasoning. Justice Antonin Scalia wrote the majority opinion, holding that the government’s actions, through law enforcement, in attaching the device and using it for surveillance constitute a search under the Fourth Amendment.

Read a Washington Post article on U.S. v. Jones or the full Supreme court opinion.

The Fourth Amendment provides in part that”[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.” A vehicle is an “effect.”

Police and FBI obtained a warrant allowing them to place a GPS unit on a Jeep registered to the wife of suspected drug trafficker Antoine Jones within ten days, while it was still in Washington, D.C. They placed the device eleven days later, in Maryland, and tracked Jones’s movements for 28 days. The government acknowledged it had violated the warrant, but asserted that a warrant wasn’t necessary. The GPS evidence was critical in obtaining his conviction in the U.S. District Court for the District of Columbia. The appeals court reversed, and the Supreme Court upheld the reversal. According to the Washington Post, the U.S Attorney for the District of Columbia has not yet decided whether to retry Jones. No doubt the decision will turn on the strength of other evidence.

The Jeep was registered to Jones’s wife, but he was the exclusive user. The government did not challenge his right to challenge the warrant and move to suppress the evidence.

Writers, keep in mind that some state courts have long held that a warrant is required under state constitutions.

Note that following and physically observing a suspect are different than using a GPS device. Visual observations of movements on a public street are not searches.

The Jones decision is relatively narrow, focusing on the facts presented by this specific case. It does not answer other questions raised by changing technology: Does electronic surveillance that doesn’t require physical trespass, like cell phone tracking, constitute a search? Will society’s changing expectations of privacy–think of all the once-private information we now disclose online and elsewhere, wittingly and not–change how courts analyze the right to privacy?

Of course, a warrant won’t always be necessary. Consent by a owner-of-record, e.g., a spouse who’s on the title, may suffice–and writers can easily conjure situations where consent might be given. (Consent wasn’t an issue in Jones, and the Court didn’t discuss it.) Could an estranged spouse who’s still got an ownership interest but no longer exercises any control over the vehicle give valid consent? Maybe, maybe not. But I do think a lender lienholder could not give valid consent. And state constitutions may require protection in areas that the federal constitution does not.

Remember, the Constitution applies only to acts by the government, not private persons. This decision doesn’t apply to your fictional PI who gets his client’s consent to put a GPS unit in a vehicle the client jointly owns with her spouse to track the cheating SOB.

Writers, you may want your fictional law enforcement officers to follow the law, or flout it. You may want GPS evidence excluded so your fictional prosecutors have to look elsewhere. Or you may have a PI working a civil case and not affected by the ruling in Jones. That’s the beauty of fiction: you get to make up your own facts.

 Now, get back to your keyboards.

 (Photos from Supreme Court website.)

Library Love!

The ALA Midwinter meeting in Dallas wraps up this week, and the PLA annual conference hits Philadelphia in mid March. Most writers started as readers, and we got the book bug in libraries. My essay on libraries I’ve loved is featured on the Sisters in Crime blog this week; it originally appeared on Jenny Milchman’s Suspense Your Disbelief

And as the bumper sticker says, thank — or hug — a librarian today!

Jane Friedman on securing permissions

Although I don’t advise writers on contract and copyright issues, I do hear lots of questions about permissions and fair use — and some of them may be answered today on Jane Friedman’s blog, in her post When Do You Need to Secure Permission?

Jane’s blog is a consistently excellent source of advice on many issues for writers, especially on changes in the publishing industry.

Psychologist Carolyn Kaufman on the Insanity Defense

Today, psychologist Carolyn Kaufman, author of The Writer’s Guide to Psychology (Quill Driver Books, 2010), and I trade perspectives on the insanity defense. You can read my post on the legal issues of insanity on the Query  Tracker blog .

Psychological Disorders and the Insanity Defense

When people hear the word “insanity,” most assume they’re talking about a psychological term (or maybe even a psychological diagnosis). In fact, insanity is a legal term, which means that a courtroom is the only place that a person can be declared insane. However, psychologists and psychiatrists can help determine whether someone has a psychological condition that will let the defense argue that the defendant should be declared “not guilty by reason of insanity” (NGRI).

So what does it mean to be NGRI? “Currently,” writes Leslie Budewitz in Books, Crooks, and Counselors, “in federal cases, the defendant must prove that he has a ‘severe’ mental disease that made him ‘unable to appreciate the nature and quality or the wrongfulness of his acts.’” In other words, the individual must be so psychologically disturbed that she or he (we’ll use he for the sake of simplicity in this post) was not able to understand at the time he was committing the crime that what he was doing was wrong.

In psychological terms, that usually means the individual was psychotic. Psychosis means that someone has lost touch with reality the way most people experience it. The two most common symptoms of psychosis (though both do not need to be present for psychosis to be diagnosed) are hallucinations and delusions. Writers often use the terms “hallucination” and “delusion” interchangeably, but they are not synonymous.

Hallucinations are sensory experiences in the absence of sensory stimuli. In other words, the person is seeing, hearing, feeling, smelling, or tasting something that isn’t there. Someone who is hearing voices, for example, would be said to be hallucinating.

Delusions are problematic beliefs that are not based in reality and which cannot be shaken with logic. The belief that one’s thoughts are being stolen and recorded by, say, the FBI or aliens is delusional.

The disorder most often associated with psychosis is schizophrenia. (Note: Schizophrenia is not the same thing as dissociative identity disorder, sometimes called multiple personality disorder. People with schizophrenia only have one personality.) In addition to hallucinations and delusions, some people with schizophrenia experience disorganized thoughts, speech, and behavior. That doesn’t mean they’re messy people—it means their behavior is odd, even bizarre. Words and phrases may be jumbled together in a nonsensical fashion. Though the media is usually quick to look for schizophrenia in people responsible for mass shootings, Jared Lee Loughner, the man who opened fire in Tucson in January 2011, is one of the few who clearly does have schizophrenia.

Bipolar disorder, once called manic depression, can also cause hallucinations and delusions, usually in the manic phase. There is also a small handful of other psychotic disorders. These include delusional disorders, in which someone has delusions but no other symptoms of a disorder like schizophrenia or bipolar disorder.

If you decide to portray a psychotic disorder, be aware that although symptoms for disorders like schizophrenia and bipolar disorder can worsen at times due to, say, stress, they should not just appear and disappear when it is most convenient for the author. Psychotic disorders and bipolar disorder are severe, life-changing problems that generally require medication (antipsychotics for psychotic disorders and, in the case of bipolar disorder, mood stabilizers) as well as therapy to learn to manage the disorder.

One diagnosis that will not earn your character a NGRI determination is psychopathy, in which the individual knows exactly what he’s doing and that it’s wrong—he just doesn’t care. A psychopath is stone-cold sane. Because there is no entry for “psychopathy” in the current version of the psychological diagnostic manual (DSM-IV-TR), people who violate others’ rights and break laws with this lack of conscience are diagnosed with antisocial personality disorder (APD). Not because they withdraw from society or isolate themselves (they don’t), but because they are anti-society. They flagrantly violate others’ rights and cause problems for society.

Only the very worst cases of APD qualify as true psychopathy. Psychopaths are whimsical, reckless, callous, cold, and cruel. They are your serial killers. (Serial killers are rarely psychotic, because psychotic people are not able to be organized and deliberate enough to hide their crimes long term.) If they’re charismatic and intelligent, they might also become CEOs, politicians, or other people of power and influence. (For more on this topic, check out Paul Babiak and Robert Hare’s book Snakes in Suits: When Psychopaths Go to Work .)

True psychopaths are thought by experts like Robert Hare to be born the way they are. They are your proverbial “bad seeds.” (For more information on how the brains of psychopaths are different from those of other people, check out The Writer’s Guide to Psychology! ) If you want to see the difference between someone who’s psychotic and someone who’s psychopathic, compare John Nash in A Beautiful Mind (schizophrenia, though far from a perfect portrayal of it) to Hannibal Lecter in Silence of the Lambs (psychopathy).

I mentioned dissociative identity disorder (DID) earlier, and though there have been historical cases of people being declared NGBI due to DID, that is much more unlikely in a modern environment. Why? First, because people with DID are not psychotic. Add to that the fact that DID is one of the most—if not the most—controversial diagnosis in psychology. There is strong evidence that, at least in some cases, the disorder is “iatrogenic,” which means it has been created by the therapist in a suggestible individual. The famous case of Sybil, for example, was iatrogenic, created by a therapist interested in fame. (For more information, check out Debbie Nathan’s book Sybil Exposed .)

To summarize, only in a courtroom can it be decided whether someone is legally sane or insane—but a psychologist or psychiatrist may be asked whether a defendant is (and/or was at the time of the crime) psychotic to determine whether he should be declared NGRI.

Finally, as Leslie Budewitz mentions in Books, Crooks, and Counselors, NGRI is not—contrary to popular belief—a plea that is often used successfully in court: “Justice Department statistics say the defense is raised in only about 1 percent of cases, and succeeds in only 25 percent of those.” It is also not a Get Out of Jail Free card. In fact, on average, a person declared NGRI spends more time in a psychiatric facility than he might have spent in jail.

Carolyn Kaufman, PsyD, is the author of The Writer’s Guide to Psychology: How to Write Accurately About Psychological Disorders, Clinical Treatment and Human Behavior  (Quill Driver Books, 2010) which helps writers avoid common misconceptions and inaccuracies and “get the psych right” in their stories. She also blogs for Psychology Today and the QueryTracker Blog .

Thanks, Carolyn!


Citizen involvement in a search

Mystery writers occasionally need a good reason for a person who is not a member of law enforcement to get involved in an investigation. This case suggests some possibilities: In an ongoing investigation in far northeastern Montana and western North Dakota, the FBI has asked farmers and ranchers to look for signs of disturbance on the ground that might indicate a recent burial. According to this AP account  published in the Missoulian, the FBI and local authorities are searching for the body of 43-year-old high school math teacher Sherry Arnold who disappeared ten days ago while on her Saturday morning run and is believed dead. Two men have been arrested and are currently jailed in Williston, North Dakota. The once-sleepy area is in the midst of an oil boom–which may well have brought with it some unexpected dangers, and tragedy.