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EDITORIAL: Thwarting domestic spies

An appeals court tells the police to obey the Constitution

- - Sunday, October 27, 2013

Rights once lost are usually gone for good. Governments never admit mistakes, and few judges are courageous enough to set things right. So it's refreshing that the 3rd U.S. Circuit Court of Appeals in Philadelphia last week came to the eminently reasonable conclusion that the police must get a warrant before putting an electronic tracking device on someone's car.

This shouldn't be controversial, but it is, and it has been a growing problem. The march of technology has created powerful tools that governments can use and abuse, to watch, track and listen to everything everyone does. Police agencies eagerly purchase the latest gadgets without much thought to their duty to follow the Constitution; specifically, the Fourth Amendment, which decrees that "persons, houses, papers, and effects" shall be secure from searches without a warrant based on probable cause. A GPS device to track someone logically falls neatly into this category.

Three brothers were suspected of committing a string of drugstore burglaries in Pennsylvania, Maryland and New Jersey, and the police wanted to attach a monitoring device to their car. This is where they were required to show to a judge the evidence implicating these men. This is not a heavy burden. Judges can question the officers to satisfy the court that a warrant is justified, and judges rarely say no. Nevertheless, the FBI didn't take the trouble to make a proper application for a warrant. Instead, they consulted the U.S. Attorney's Office and then mounted a snooping device on the suspects' car.

The GPS tracker, as the police suspected, linked the brothers to a Rite Aid pharmacy that had been robbed. The location information provided by the GPS unit made it easy to stop and search the brothers' car and recover the stolen items. Because the cops cut constitutional corners, the defendants successfully argued in a lower court that the evidence was not admissible.

The appellate court agreed that the police conduct was "highly disconcerting." The three-judge panel relied on the Supreme Court's recent determination that GPS monitoring was a form of search, though the high court failed to clarify whether such a search could be made without a warrant. "A GPS search," the appeals court ruled, "extends the police intrusion well past the time it would normally take officers to enter a target vehicle and locate, extract, or examine the then-existing evidence."

The American Civil Liberties Union filed a friend of the court brief arguing the need to uphold the warrant requirement. "These protections are important," says the ACLU lawyer, Catherine Crump, "because where people go reveals a great deal about them, from who their friends are, where they visit the doctor and where they choose to worship."

It's too easy for law enforcement agencies to spy on ordinary Americans. With taxpayer cash for new devices and gadgets, they have everything needed to monitor, track and eavesdrop. This is an authority that must be balanced and restrained by judicial oversight.

It's reassuring to see a court willing to say "enough," but there's a way to go before Americans can be secure in their "persons, houses, papers, and effects" — and emails. The public must insist on rolling back the surveillance state so carefully crafted in secret for our "protection."