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US appeals court bashes warrantless GPS tracking

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A federal appeals court has roundly rejected US government claims that it doesn't need a search warrant to surveil suspects using global positioning system location-tracking devices.

In a decision released Friday, a three-judge panel of the US Court of Appeals for the District of Columbia unanimously ruled that FBI agents should have obtained a warrant before planting a GPS device on the vehicle of a suspected drug dealer. That allowed agents to track his position every ten seconds for a full month and was accurate to within 100 feet. The device yielded more than 3,100 pages worth of data, according to documents filed in the case.

Attorneys from the American Civil Liberties Union and the Electronic Frontier Foundation filed a friend-of-the-court brief in the case arguing that absent a warrant, the planting of the device was an illegal search under the US Constitution's Fourth Amendment. The appeals court on Friday firmly rejected federal prosecutors' arguments that the suspect had no reasonable expectation of privacy because the vehicle's whereabouts could have been easily tracked using human surveillance.

“It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work,” Judge Douglas H. Ginsburg wrote. “It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.

The decision comes in a case of one Antoine Jones, who was indicted for cocaine trafficking in the Washington, DC area. FBI agents secretly planted the device on his Jeep Cherokee while it was parked on private property. The Jeep's physical locations were then used by prosecutors to file charges against the man.

A lower court judge who presided over the case suppressed evidence collected while the vehicle was parked in a private garage but allowed other data to be admitted. The appeals court on Friday reversed that decision and threw out the GPS evidence entirely.

If adopted by appeals courts in other districts, the holding could have a profound effect on the rapidly growing use of GPS technology by police. Police cruisers in Los Angeles, for example, are outfitted with air guns that can shoot GPS-enabled darts at passing cars, the amicus curiae brief claimed. Police in Arlington and Fairfax counties near Washington used GPS devices 229 times from 2005 to 2007, the brief said. ®

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