Cato@Liberty: Will GPS Tracking Render the Fourth Amendment Quaint? posted by Jim Harper:

If the government put a GPS monitor on your car and used it to track every vehicular movement of yours for four weeks, do you think that would violate your Fourth Amendment rights? The government would like to be able to do that kind of thing without getting a warrant, and the Supreme Court will soon decide whether it can.

On November 8th, the Court will hear oral argument in U.S. v. Jones. Yours truly was the lead author of Cato’s amicus brief in the case, which may have a significant effect on how Fourth Amendment law intersects with new information technologies for decades to come.

Wired.com: GPS Inventor Urges Supreme Court to Reject ‘Automated,’ Warrantless Surveillance by David Kravets:

The principal inventor of the Global Positioning System is asking the U.S. Supreme Court to renounce the Obama administration’s position that it may affix GPS devices to vehicles and track their every move without a court warrant.

Roger L. Easton, awarded the National Medal of Technology in 2006, joined the Center for Democracy & Technology, the Electronic Frontier Foundation and other academics in a friend-of-the-court brief lodged Monday in one of the biggest Fourth Amendment cases in a decade — one weighing the collision of privacy, technology and the Constitution. The justices are scheduled to argue the case Nov. 9.

Easton, now 90 and the principal inventor and developer of the Timation Satellite Navigation System at the Naval Research Laboratory more than five decades ago, and the others are telling the high court that its precedent on the topic is outdated, and the government’s reliance on it should be rejected.

A Municipal Judge’s denial of a search warrant is not res judicata barring the police for asking for consent. Res judicata is a final judgment on the merits. The basis for denial of the warrant is not revealed by the record. “Moreover, Appellant presents no law that indicates that the denial of a search warrant is a final appealable order which would lead to the invocation of the doctrine of res judicata in subsequent proceedings. [¶] There is simply no indication as to why the search warrant was denied or what parties were involved in the request for the warrant or indication that an actual hearing took place.” Moreover, his consent was an independent act. State v. Mackenzie, 2011 Ohio 4966, 2011 Ohio App. LEXIS 4091 (5th Dist. September 28, 2011).

Defendant was driving a car with permission of the owner, and he succeeded in showing that the stop lacked reasonable suspicion or probable cause, so the search is suppressed. The sole basis for the stop was that the color of the car did not match the DMV registration. United States v. Uribe, 2011 U.S. Dist. LEXIS 112001 (S.D. Ind. September 28, 2011).*

Defendant’s contention that the officer stalled the stop to get more time for the drug dog to arrive was rejected because of the overall time limit involved from beginning to end: 13½ minutes. Dickey v. State, 2011 WY 136, 261 P.3d 739 (Wyo. 2011).*

Defendant gave consent for the police to enter his welding shop to look for a wanted man. While inside, they called for a drug dog to sniff his van parked inside, and the dog alerted. The consent did not include bringing in a drug dog and the trial court was correct in suppressing and the court of appeals in affirming. State v. Weaver, 349 S.W.3d 521 (Tex. Crim. App. 2011) (with dissent here and here):

The scope of a search is usually defined by its expressed object. A person is free to limit the scope of the consent that he gives. If police rely on consent as the basis for a warrantless search, “they have no more authority than they have apparently been given by the consent.” It is therefore “important to take account of any express or implied limitations or qualifications attending that consent which establish the permissible scope of the search in terms of such matters as time, duration, area, or intensity.” On the other hand, a person's silence in the face of an officer's further actions may imply consent to that further action. The “standard for measuring the scope of a suspect's consent under the Fourth Amendment is that of 'objective' reasonableness-what would the typical reasonable person have understood by the exchange between the officer and the suspect?” Therefore, a court reviewing the totality of the circumstances of a particular police-citizen interaction does so without regard for the subjective thoughts or intents of either the officer or the citizen. Still, in Texas, the “clear and convincing” burden “requires the prosecution to show the consent given was positive and unequivocal and there must not be duress or coercion, actual or implied.”

Warrantless GPS tracking violates the Fourth Amendment, deciding the case despite the fact the state and U.S. Supreme Court have the issue before them. State v. Sullivan, 2011 Ohio 4967, 2011 Ohio App. LEXIS 4096 (5th Dist. September 23, 2011):

We note that these issues are presently before the Ohio Supreme Court in the case of State v. Johnson, 190 Ohio App.3d 750, 944 N.E.2d 270, 2010 Ohio 5808, appeal allowed 128 Ohio St.3d 1425, 943 N.E.2d 572, 2011 Ohio 1049 (Table). We further note that the United States Supreme Court has granted certiorari to review the Fourth Amendment implications in the attachment and monitoring of a GPS tracking device. See, U.S. v. Maynard (D.C.Cir.2010), 615 F.3d 544, 392 U.S. App. D.C. 291, cert granted U.S. v. Jones, 131 S. Ct. 3064, 2011 WL 1456728, 79 USLW 3610, 79 USLW 3718, 79 USLW 3727 (U.S. Jun 27, 2011) (10A760).

Maybe, just maybe, this court wants SCOTUS to know what it thinks on this issue.