WASHINGTON — In a rare defeat for law enforcement, the Supreme Court unanimously agreed Monday to bar police from installing GPS technology to track suspects without first getting a judge’s approval. The justices made clear it won’t be their final word on increasingly advanced high-tech surveillance of Americans.

Indicating they will monitor the growing use of such technology, five justices said they could see constitutional and privacy problems with police using many kinds of electronic surveillance for long-term tracking of citizens’ movements without warrants.

While the justices differed on legal rationales, their unanimous outcome was an unusual setback for government and police agencies grown accustomed to being given leeway in investigations in post-Sept. 11 America, including by the Supreme Court. The views of at least the five justices raised the possibility of new hurdles for police who want to use high-tech surveillance of suspects, including various types of GPS technology.

Police in Maine have used GPS technology to track suspects.

While investigating a string of arsons in Standish and other Cumberland County towns last year, investigators obtained a search warrant to use GPS to track the movements of suspect Carol Field, a Standish grandmother, prior to her arrest. She is now awaiting trial on several arson charges.

“The Supreme Court’s decision is an important one because it sends a message that technological advances cannot outpace the American Constitution,” said Donald Tibbs, a professor at the Earle Mack School of Law at Drexel University. “The people will retain certain rights even when technology changes how the police are able to conduct their investigations.”

A GPS device installed by police on Washington, D.C., nightclub owner Antoine Jones’ Jeep and tracked for four weeks helped link him to a suburban house used to stash money and drugs. He was sentenced to life in prison before an appeals court overturned his conviction.

It’s not clear how much difficulty police agencies would have with warrant requirements in this area; historically, they are rarely denied warrants they request. But the Obama administration argued that getting one could be cumbersome, perhaps impossible in the early stages of an investigation.

In the Jones case, police got a warrant but did not install the GPS device until after the warrant had expired and then in a jurisdiction that wasn’t covered by the document.

Justice Antonin Scalia said the government’s installation of the device, and its use of the GPS to monitor the vehicle’s movements, constituted a search, meaning a warrant was required. He concluded that the police action without a warrant was a trespass and therefore an illegal search. He was joined in his opinion by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

All nine justices agreed that the GPS monitoring on the Jeep violated the Fourth Amendment’s protection against unreasonable search and seizure, a decision the American Civil Liberties Union said was an “important victory for privacy.”

No justice embraced the government’s argument that the surveillance of Jones was acceptable because he had no expectation of privacy for the Jeep’s location on public roads.

Sotomayor, in her separate opinion, wrote that it may be time to rethink all police use of tracking technology, not just long-term GPS.

“GPS monitoring generates a precise, comprehensive record of a person’s public movement that reflects a wealth of detail about her familial, political, religious and sexual associations,” Sotomayor said. “The government can store such records and efficiently mine them for information for years to come.”

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., called the decision “a victory for privacy rights and for civil liberties in the digital age.” He said it highlighted many new privacy threats posed by new technologies. Leahy has introduced legislation to update the Electronic Communications Privacy Act, a 1986 law that specifies standards for government monitoring of cellphone conversations and Internet communications.

 

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