FBI Back to the Old-fashioned Way

Late last year, the Supreme Court heard arguments concerning U.S. v. Antoine Jones.  To summarize the principal dispute, the defendant objected to the government’s us of a GPS tracking device installed on his car to track his movement for a month.   The defendant, and a large number of concerned parties, believed that the installation of the device amounted to a search without a warrant in violation of theFourth Amendment’s protections against unreasonable searches and seizures.
 
The government’s main response was that the information gleaned from the tracking device could have been learned from law enforcement personnel tracking the suspect on public roads 24 hours a day for the same time period.  Essentially, the government maintained that the technology involved simply allowed law enforcement to track the suspect, which would normally be entirely allowable without a warrant, in a dramatically easier and more efficient way.
Last January, in a decision that privacy advocates lauded as a victory over “big brother,” the Court instructed law enforcement to either do it the old-fashioned way or get a warrant.  The Court felt that the installation of the device was a warrantless intrusion into the suspect’s property, despite the fact that the defendant was driving almost exclusively on public roads.  Thus the Supreme Court effectively ruled that computers that track suspects are much more intrusive on constitutionally provided privacy interests than humans doing the exact same thing.

“‘We have a number of people in the United States whom we could not indict, there is not probable cause to indict them or to arrest them who present a threat of terrorism.'”

Anticipating the decision, the Federal Bureau of Investigation scrambled to get warrants for their approximately 3,000 currently operating tracking devices.  While they were only partially successful, they still managed to render approximately 92% of their devices “legal” under the new Jones ruling.
However, the last remaining 8% still worry the FBI. In FBI Director Robert Mueller words:  “’We have a number of people in the United States whom we could not indict, there is not probable cause to indict them or to arrest them who present a threat of terrorism. … [They] may be up on the Internet, may have purchased a gun, but have taken no particular steps to take a terrorist act.’”  Taking the Supreme Court’s advice, instead of warrantless searches, the FBI has resorted to tracking the persons of interest with conventional teams of six or eight.  The teams obviously further taxes federal law enforcement’s already strained budget and manpower.
Further questions remain.  Namely, prosecutors and agents in the field are left with questions on how to bridge the “probable cause” gap to obtain a warrant.  In the past, tracking suspects with GPS devices was usually one of the main ways of obtaining a warrant.  Also, in a concurring opinion, Justice Scaliawrote that a month of warrantless tracking is unconstitutional, but a couple days might be fine.  This has created a legal grey area in which law enforcement officers are left to wonder how many days of warrantless tracking is palatable to the courts.  Until such a ruling is made, federal agents are simply being advised to do it the old-fashioned way.