GPS Tracking: In Our State, Police Need a Warrant

Wednesday, October 5, 2011

The United States Supreme Court soon is going to consider a case involving warrantless use of a GPS tracking device, in a case the New York Times has called “the most important Fourth Amendment case in a decade.”  It will determine whether the government is able to track its residents secretly without first obtaining judicial authorization – or even without having any good reason. This question has divided the federal courts; two Courts of Appeal have said that warrantless tracking is OK, but the DC Court of Appeals held that it violated the Fourth Amendment

Although this issue is breaking news in Washington, DC, it’s old news in Washington state. This exact issue was considered by the Washington Supreme Court back in 2003, prior to any other state or federal court. The case stemmed from an incident in which Spokane County sheriffs wired a GPS device to a person’s car to trace its movements. The ACLU-WA submitted a brief pointing out that the action was the equivalent of placing an invisible police officer in the person’s back seat 24/7.

Supported by ACLU briefing, our court decided that warrantless tracking violated the Washington Constitution

While prosecutors claimed using a GPS is no different than the time-honored practice of a police cruiser tailing a vehicle, the court found that 24-hour, uninterrupted surveillance by GPS is fundamentally different.

“The intrusion into private affairs made possible with a GPS device is extensive as the information obtained can disclose a great deal about an individual’s life,” said Justice Barbara Madsen in the court’s ruling.  The court pointed out that GPS devices can provide detailed information about personal details of an individual’s life, including travel to doctors’ offices and banks, attendance at houses of worship and political meetings, and visits to restaurants and bars.

Although it’s taken longer than we had hoped, the Washington state decision gradually has begun to influence other courts. Two years ago, New York’s highest court found the Washington case persuasive and similarly held that warrantless tracking violated the New York constitution. And the DC Circuit quoted both the Washington and New York cases in its opinion.

Although it’s hard to predict what the Supreme Court will do, we can hope that it will also find Washington’s opinion persuasive. But even if the United States Supreme Court goes the wrong way, Washingtonians can still be confident that their privacy rights will be maintained, supported by our state constitution – and with a little help from the ACLU.