Police need warrant to use global positioning system.

Installing a global positioning system (GPS) device on a suspect's vehicle constitutes search and seizure and therefore requires a warrant, the Washington Supreme Court ruled recently in a case of first impression. (Washington v. Jackson, 76 P.3d 217 (Wash. 2003).) The court also held that the warrant issued in the case was valid.

"We are very pleased with the decision," said Doug Klunder, director of the ACLU of Washington's Privacy Project, which filed an amicus brief in the case. "The technology at issue here provides an incredible amount of information about a person's life, and we believe that being able to go back and download the information two weeks later--which is what was d one in this case--requires a warrant."

The court based its ruling on Article I, Section 7 of the Washington State Constitution, which includes stronger privacy protection provisions than the U.S. Constitution, Klunder said. "These days, in Washington [state], it is rare to make a Fourth Amendment argument."

The defendant in the case, William Jackson, was a suspect in the disappearance of his nine-year-old daughter when police obtained a warrant to search his house and impound his two vehicles. While the vehicles were in their custody, the police obtained a separate warrant to install GPS devices in both vehicles and record their movements for 10 days. After the first GPS warrant ran out, they obtained an additional 10-day warrant. Based on detailed travel information gathered by the devices, investigators uncovered incriminating evidence, including the daughter's body.

The state supreme court's opinion echoed the ACLU's concerns regarding the considerable invasion of privacy enabled by the technology.

"The device can provide a detailed record of travel to doctors' offices; banks; gambling casinos; tanning salons; places of worship; political party meetings; bars; grocery stores; exercise gyms; places where children are dropped off lot school, play, or day care; the upper-scale restaurant and the last food restaurant; the strip club; the opera; the baseball game; the 'wrong' side of town; the family planning clinic; the labor rally," wrote Justice Barbara Madsen for the majority. "In this age, vehicles are used to take people to a vast number of places that can reveal preferences, alignments, associations, personal ails and foibles."

In its ruling, the court cited a case in which the Oregon Supreme Court ruled that the installation of a "beeper," or radio transmitter, in a suspect's car required a warrant. (Oregon v. Campbell, 759 P.2d 1040 (1988).)

As that court noted, Madsen wrote,

   an officer could look through a living room
   window from across the street aided by a
   telephoto lens to observe a defendant
   exposing himself to public view, but the officer
   could not obtain the same information
   by entering the home without consent.
   Thus, the court said, the question was not
   whether what the police learned by use of
   the transmitter was exposed to public view,
   but whether use of the device can be characterized
   as a search.

Klunder said a better technological analogy to GPS would he thermal imaging technology, which allows authorities to detect heat-distribution patterns through walls. Two years ago, the U.S. Supreme Court ruled that thermal imaging is intrusive enough to constitute a search and therefore requires a warrant. (Kyllo v. United States, 533 U.S. 27 (2001).)

What distinguishes a GPS device from a radio transmitter and from thermal imaging technology is its ability to reveal not only where a person is, but where he or she has been.

"As the ACLU points out with regard to the particular GPS devices used in this case, when the GPS data was downloaded, it provided a record of every place the vehicle had traveled in the past," Madsen added in a footnote to the majority decision. "Sense-enhancement devices like binoculars and flashlights do not enable officers to determine what occurred in the past."

Klunder said the Fourth Amendment question might never have reached the high court were it not for the state court of appeals.

"It was a somewhat unusual case," he said. "They did have a warrant, but when the defense challenged the validity of the warrant, our appeals court said, 'Well, we don't have to decide that because no warrant is needed.'

"The appeals court could easily have found that the warrant was sufficient and not [pressed] this kind of wild claim that the warrant wasn't necessary, and then the supreme court would never have looked at it."