They certainly can now, but the Supreme Court has agreed to decide whether law enforcement should place tracking transmitters on the vehicles of suspects without first seeking a warrant. The test case will come from an appellate court that threw out a drug-distribution conviction and life sentence, ruling that the failure to get a warrant for the device violated the Fourth Amendment rights of Antoine Jones, a nightclub owner in Washington DC. As MSNBC reports, though, Jones was not the only suspect to have unknowingly carried an FBI tracking device:
I’m surprised that this hasn’t happened before. With most vehicles requiring an oil change every 3,000 miles, cars get racked on a regular basis. Perhaps other law enforcement agencies do a better job of hiding the transmitter that they did with Afifi. The report doesn’t indicate what the FBI’s interest was in surreptitiously tracking the American-born college student, but they didn’t mind making their presence known to get the transmitter back.
Maybe they were tracking Afifi for a study on a federal mileage tax, eh?
The Jones case involved the police, not the FBI:
The appeals court threw out the conviction and the life-in-prison sentence for Antoine Jones, a nightclub owner in Washington, D.C., for conspiracy to distribute cocaine.
Police put the GPS device on Jones’ vehicle and tracked his movements for a month during their investigation. Evidence obtained as a result of using the GPS device played a key role in his conviction.
The appeals court said prolonged electronic monitoring of Jones’ vehicle amounted to an unreasonable search.
The argument that law enforcement needs no warrant to track vehicles on public roads doesn’t make a lot of sense. They can’t search the vehicles themselves without permission, a search warrant, or probable cause (which strongly suggests an emergent situation as opposed to a chronic issue) even if the vehicle is on a public road at the time. Why, then, can police or FBI use tracking devices without the same restrictions, especially for long periods of time?
Drivers might not have a right to privacy in the act of driving on public roads, but that applies mainly in the moment. For instance, if police observe someone smoking a joint or drinking Jack Daniels while driving, they have the jurisdiction to pull the car over and arrest the driver, and few if any would dispute that. That’s a far cry from the government at any level compiling a list of travels and destinations over any period of time, which really does fall into Big Brother territory. If the government has probable cause to collect that kind of information, then law enforcement has enough information to get the search warrant to start collecting that kind of data.
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