USJF Brief in GPS Tracking Case

October 3, 2011 @

The Government does not seek a resolution of this case tailored to its facts. Rather, it strives for total victory — a judicial declaration that the Fourth Amendment does not ever apply to Global Positioning System (“GPS”) monitoring, without regard for the facts that the Government committed an illegal trespass to attach the GPS device onto private property, and then indiscriminately monitored the movement of the Jones vehicle, no matter the identity of the driver, the destination of the vehicle, or the length of time.

The Government’s extreme view that the Fourth Amendment is completely irrelevant is made possible only by this Court’s mistaken jurisprudence that the Fourth Amendment only applies to situations wherein persons have a “reasonable expectation of privacy.” This 44-year old doctrine — grafted onto the Fourth Amendment by a judicial rejection of a time-honored rule that protected the people from a “mere evidentiary” search — has proved, as its critics on the court predicted, unfit to secure the liberties of the people.

As the Government has taken advantage of new technologies enabling its agents to penetrate ever more deeply into the private lives of citizens, “society’s” expectations of privacy have correspondingly shrunk. Had previous Courts adhered to the original text of the Fourth Amendment, rather than substituting their own language, the right of the people to be “secure in their persons, houses, papers, and effects” would have preserved their privacy by a permanent wall of the unalienable right of private property.

As this Court held in the seminal case of Boyd v. United States, 116 U.S. 746 (1886) the first freedom of the Fourth Amendment protects the people from any search for or seizure of any private property to which Government could not affirmatively demonstrate that it had a superior right. Thus, even if the Government could meet the warrant, probable cause, and particularity requirements of the Amendment, it could not search for, or seize, property, unless that property was shown to be the fruit of a crime, an instrumentality of a crime, or contraband.

Had this ban on searching for and seizing “mere evidence” held, wiretapping and other forms of surreptitious eavesdropping by sophisticated technological means would have been prohibited by the Fourth Amendment, the foremost purpose of which is to protect the inherent property right that each individual human being has in his own person — including his communications and his movements.

As applied here, the property-based principles of the original Fourth Amendment protects against both the installation and the use of the GPS tracking device. By attaching the device to the Jones vehicle without the owner’s knowledge or consent, the Government unlawfully trespassed on Mr. Jones’ indefeasible right of private property. And, by monitoring the movement of the Jones vehicle, the Government indiscriminately seized “mere evidence.” Not only did the Government’s action violate these inherent, God-given unalienable… Read more

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