GPS tracking by P.I.s – and other characters

Writers often ask whether private investigators and other characters can use Global Positioning Systems (GPS) tracking devices to follow individuals. The U.S. Supreme Court recently decided in U.S. v. Jones (see my blog post here) that law enforcement use of a GPS tracking device requires a warrant, under the 4th Amendment. (Some state courts had already reached that conclusion under state law.) But of course, the 4th Amendment doesn’t apply to actions by private citizens.

A recent article in the New York Times gives an eye-popping look at the ways private individuals are using GPS trackers–and how easy it is. Many uses are benign on the surface–tracking an elderly parent with dementia (although better, I think, to take the keys), or a young driver with a lead foot or questionable friends. Some uses raise ethical and legal dilemmas–tracking a wayward spouse, for example, or an employer watching an employee suspected of playing hookey, misusing a company-owned vehicle, or claiming expenses for trips not taken. Others could rise to the level of criminal stalking. (Check your story state for statutes defining and punishing stalking. The National Center for Victims of Crime has compiled a summary of state, federal and tribal laws on criminal and civil stalking.)

The Times quotes a private investigator as saying his “infidelity business” has dropped off, as suspicious spouses do their own electronic spying. It also reports that sales may exceed 100,000 devices a year. Most are small–about the size of those magnetic metal key holders–and most I found online were $500 or less. Some plug in to the car battery; others run on their own batteries. (The Jones decision mentions that at one point, police had to change the battery on the device in Jones’ Jeep.)

Of course, GPS devices are a great help finding your way in the wilderness, or for search and rescue squads. REI sells GPS sports watches  so runners can track speed and distance. Some include heart monitors and music players. They even keep time. Golfers use devices preprogrammed with thousands of courses to plan their shots and find errant balls. (I’d need one with a long battery life.) And millions of drivers use them every day.

But using them to track someone else, without their knowledge, creates tremendous–and terrifying–potential invasions of privacy.  And imagine the physical dangers your villain could design for your protagonist or fictitious victims.

I suspect we’ll see a continued increase in the good, the bad, and the very ugly uses of GPS trackers, and with that, more calls for regulation by the states, tribes, and federal government. Some states already ban their use without consent, except by law enforcement and the vehicles’ owners.

Meanwhile, think about the trouble you can cause your characters.

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.)