Joshua Engel of Law Technology News reported on Tuesday that the U.S. Supreme Court will soon issue its decision in U.S. v. Jones, which we blogged about last month. He notes that even if the Supreme Court holds that warrantless GPS use is permissible under the U.S. Constitution, state courts may continue to restrict the practice based on broader protection afforded by state constitutions. To illustrate the point, he summarizes criminal cases from Washington and New York holding that the state constitution requires police to get a warrant before installing a GPS tracking device.
The Washington Supreme Court, in State v. Jackson, 76 P.3d 217, 222 (Wash.2003), began by noting that
The inquiry under article I, section 7 [of the Washington Constitution] is broader than under the Fourth Amendment to the United States Constitution, and focuses on “those privacy interests which citizens of this state have held, and should be entitled to hold, safe from governmental trespass.”
The court continued:
If police are not required to obtain a warrant under article I, section 7 before attaching a GPS device to a citizen’s vehicle, then there is no limitation on the State’s use of these devices on any person’s vehicle, whether criminal activity is suspected or not. The resulting trespass into private affairs of Washington citizens is precisely what article I, section 7 was intended to prevent.
Id. at 224. The New York Court of Appeals followed suit in People v. Weaver, 909 N.E.2d 1195, 1202 (N.Y.2009):
[W]e acknowledge that the determinative issue remains open as a matter of federal constitutional law, since the United States Supreme Court has not yet ruled upon whether the use of GPS by the state for the purpose of criminal investigation constitutes a search under the Fourth Amendment, and, indeed, the issue has not yet been addressed by the vast majority of the Federal Circuit Courts. Thus, we do not presume to decide the question as a matter of federal law. The very same principles are, however, dispositive of this matter under our State Constitution. If, as we have found, defendant had a reasonable expectation of privacy that was infringed by the State’s placement and monitoring of the [GPS device] on his van to track his movements over a period of more than two months, there was a search under article I, § 12 of the State Constitution. And that search was illegal because it was executed without a warrant and without justification under any exception to the warrant requirement. In light of the unsettled state of federal law on the issue, we premise our ruling on our State Constitution alone.
So the Supreme Court’s decision in Jones likely won’t be the final word on the issue. One thing’s for sure: technology will continue to advance, and our courts will need to continue interpreting the new developments against constitutional frameworks.
