GPS Surveillance In Discipline Cases

The United States Supreme Court recently made headlines with its ruling in United States v. Jones, a criminal case involving the use of a GPS locator on a criminal defendant’s car. The case started in 2004, when Antoine Jones, owner and operator of a nightclub in the District of Columbia, came under suspicion of trafficking in narcotics and was made the target of an investigation by a joint FBI and Washington, D.C. Metropolitan Police Department task force. In 2005, the Government obtained a warrant authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. The warrant was a narrow one; it only authorized installation of the device in the District of Columbia, and required that it be installed within ten days.

On the eleventh day, and not in the District of Columbia but in Maryland, agents installed a GPS tracking device on the undercarriage of the Jeep while it was parked in a public parking lot. Over the next 28 days, the Government used the device to track the vehicle’s movements, and once had to replace the device’s battery when the vehicle was parked in a different public lot in Maryland. By means of signals from multiple satellites, the device established the vehicle’s location within 50 to 100 feet, and communicated that location by cellular phone to a Government computer. It relayed more than 2,000 pages of data over the four-week period.

When Jones was eventually prosecuted, he filed a motion to suppress the information from the tracking device. A sharply divided Supreme Court split along two lines, though all nine justices agreed that the motion to suppress should be granted. The five-judge majority held that the physical placement of the GPS device on the Jeep amounted to a trespass. Writing for the majority, Justice Antonin Scalia held: “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information.”

The four judges concurring in the result would have reached the bigger question – whether GPS surveillance without the physical placement of a tracking device on the car, as would be possible by tapping into a factory-installed GPS device, would be permissible without a warrant. On behalf of the concurring judges, Justice Samuel Alito wrote that “society’s expectation has been that law enforcement agents and others would not – and indeed, in the main, simply could not – secretly monitor and catalogue every single movement of an individual’s car for a very long period. In this case, for four weeks, law enforcement agents tracked every movement that Jones made in the vehicle he was driving.” This was a breach of privacy, Justice Alito ventured, no matter whether the police attach a GPS device or use the car’s own technology.

How will the Jones decision play out when public agencies use GPS tracking devices in disciplinary investigations? For example, what if a police department uses the GPS-provided information from a detective’s “take-home” car to track the detective’s movements while on duty and off duty? The answer may vary from state to state. Some states would subject governmental employers to the same constitutional standards when conducting a disciplinary investigation as would be the case with a criminal investigation. Other states – New York, for example – have held that the use of a GPS in a disciplinary system is not subject to traditional Fourth Amendment standards because of the administrative rather than the criminal nature of the investigation. See Cunningham v. New York Department of Labor, 933 N.Y.S.2d 432 (A.D. 2011). It’s fairly predictable that states in the second camp will revisit their decision in light of the Supreme Court’s decision in Jones; whether they will change their minds is an open question.