- The Washington Times - Sunday, April 17, 2011

The Justice Department has asked the Supreme Court to review whether federal agents violated the Fourth Amendment rights of a Maryland man when they attached a satellite tracking device to his car without getting a warrant during a D.C. drug-trafficking investigation.

In a 121-page brief Friday, the department argued that the full U.S. Court of Appeals for the District of Columbia got it wrong when it upheld a three-judge panel’s reversal of Antoine Jones‘ conviction on charges of running a drug ring in the District.

The initial ruling last summer says police can’t use global positioning satellite (GPS) technology to track a suspect’s car without getting a warrant. The full court, in a 5-4 decision last fall, refused to reconsider the decision.

Now, the Justice Department, in a last-ditch effort, wants the Supreme Court to review the decision, arguing that it has broad implications for law enforcement across the country.

“Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States,” government attorneys argued in their petition. “The court of appeals’ decision seriously impedes the governments’ use of GPS devices at the beginning stages of an investigation when officers are gathering evidence …”

Attorneys for Jones, who remains in prison, argued that federal authorities violated Jones‘ reasonable expectation of privacy under the Fourth Amendment when they used a GPS device to track his movements.

“This is an issue over which a philosophically diverse appellate panel and a majority of the full court agreed,” Stephen C. Leckar, Jones‘ appeals attorney, said after the Justice Department filing.

“The public has a constitutional right that a neutral magistrate will decide in advance whether the police can secretly install in your car an extraordinarily intrusive device that will record relentlessly every seven to 10 seconds where you’ve traveled for over a month,” Mr. Leckar said. “To allow anything less would encourage further erosion of the Fourth Amendment, whose purpose was to curb such abuses of power.”

The Fourth Amendment provides against unreasonable searches and seizures.

The Justice Department’s brief said agents investigating Jones, who ran a nightclub in Northeast Washington, did get a warrant from a D.C. federal judge to covertly install and monitor a GPS on a Jeep Grand Cherokee that Jones drove.

However, the warrant was good for only 10 days and only within the District. Agents didn’t install the GPS device until after 11 days when Jones‘ vehicle was parked in Maryland.

Jones was sentenced to life in prison and ordered to pay a $1 million fine, but the appeals court reversed the conviction.

Judge Douglas H. Ginsburg wrote in an opinion that a “reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination and each place he stops and how long he stays there.”

“The GPS data were essential to the government’s case,” the appeals court also ruled. “By combining them with Mr. Jones‘ cellphone records, the government was able to paint a picture of Mr. Jones‘ movements that made credible the allegation that he was involved in drug trafficking.”

Civil liberties groups praised the appeals court decision last year. Arthur Spitzer, legal director of the American Civil Liberties Union of the National Capital Area, said the ruling “brings the Fourth Amendment into the 21st century.”

At trial, prosecutors said Jones ran a drug ring from 2003 to 2005 that involved at least nine other defendants and hundreds of kilograms of cocaine shipped from Mexico. Executing search warrants in 2005, authorities said they seized 97 kilograms of cocaine from locations in the District and Maryland - the largest cocaine seizure in area history, officials said. A joint FBI and Metropolitan Police Department task force investigated the case.

In asking the Supreme Court to review the decision, the Justice Department says that the appeals court ruling “conflicts with this Court’s longstanding precedent that a person traveling on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another, even if ‘scientific enhancements’ allow police to observe this public information more efficiently.”

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