Most people would be shocked to know how little of their privacy is protected by the Constitution. Thanks largely to the war on drugs, the courts have allowed a slow erosion so that police don't need a search warrant to peer into your backyard or rifle through your garbage. The latest narrowing comes in cases involving the police use of GPS devices. Courts have been grappling with whether law enforcement, without a warrant, may secretly attach a GPS device to a car to track a driver's movements. The debate reflects how far the law has departed from the common sense view of unconstitutional snooping.
The Fourth Amendment's protections against unreasonable search and seizure only apply when someone has a "reasonable expectation of privacy." Otherwise the governmental intrusion is not a search. This expectation exists in our homes and inside the trunks of our cars, for example, but not for those things done in public. For this reason, courts have always okayed police surveillance of suspects' cars without a warrant.
But modern technology is blurring this bright line.
When an electronic device replaces officers deployed around-the-clock, it opens the door to the government inexpensively keeping watch on far more people. It is not a big leap to imagine that the state might be interested in who went to an abortion clinic, or to an antigovernment rally, or which government worker met a reporter for lunch just before a story of politicians behaving badly broke.
In Florida, the issue emerged after Polk County detectives investigating the disappearance of lottery winner Abraham Shakespeare attached a GPS device to the vehicle of suspect Dorice "DeeDee" Moore. This helped them track Moore to a Walmart where she bought suspicious items. She was later charged with shooting Shakespeare.
Florida is more protective of privacy than other states. Law enforcement must go before a judge before using GPS tracking and demonstrate that the surveillance is "relevant" to an investigation. Still, the standard is much lower than that for a warrant, which requires a showing of probable cause that the target committed a crime. And state policing agencies can get around any judicial oversight by joining forces with federal law enforcement.
Due to a disagreement among federal circuit courts, the constitutionality of warrantless GPS tracking eventually will find its way to the U.S. Supreme Court. But constant, permanent, warrantless surveillance should not be acceptable.