“Technology and its impact on the Fourth Amendment Criminal Procedure”

Technology and its impact on the Fourth Amendment Criminal Procedure, By Timothy P. O’Neill in the Chicago Law Bulletin:

Let’s set the Wayback Machine to 1983. You are in a law school classroom and are discussing a brand new U.S. Supreme Court case, U.S. v. Knotts, 460 U.S. 276 (1983). The professor says, “This case holds that police use of a beeper to track a suspect’s car to a drug lab is not a search under the Fourth Amendment. In order for police activity to constitute a search, it must intrude on the person’s reasonable expectation of privacy. Here the car was always on public streets; theoretically, any person could have viewed the suspect’s movements. Use of the beeper only aided the officer’s ability to track those public movements. Because the police use of the beeper was not a search, the officer did not need either a warrant or probable cause to use it.”

The professor then goes on. “But let’s imagine in the distant future that technology has given police a device they can use to track a car’s movements 24 hours a day and they use it for an entire month to track a suspect. Could you argue that this is qualitatively different from the discrete trip in Knotts and that this is a search? Or should Knotts control?”

Obviously, the “distant future” is now. …

…

There is a growing body of academic literature calling for a new test for what constitutes a search under the Fourth Amendment. See, e.g., Daniel J. Solove, “Fourth Amendment Pragmatism,” __ Boston College Law Review __ (2010) (forthcoming); Jed Rubenfeld, “The End of Privacy,” 61 Stanford Law Review 101 (2008); Timothy P. O’Neill, “Beyond Privacy, Beyond Probable Cause, Beyond the Fourth Amendment: New Strategies for Fighting Pretext Arrests,” 69 University of Colorado Law Review 693 (1998). In Daniel Solove’s words “The focus should not be on which government activities invade privacy; it should be on which government activities should be regulated.”

The GPS issue is merely the first in what promises to be a long line of cases dealing with the Fourth Amendment implications of new technology. Defense lawyers must be prepared to look beyond mere “privacy” concerns when arguing these issues.